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Sentence Reform is in McConnell’s Timid Hands – Update for February 19, 2018

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


The future of the Sentencing Reform and Corrections Act (S.1917), approved 16-5 by the Senate Judiciary Committee last Thursday, will depend on whether the bipartisan coalition backing it can persuade Senate Majority Leader Mitch McConnell (R- Kentucky) to allow a full Senate vote.

mcconnell180219The New York Times said last Friday those prospects appear dim. “Mr. McConnell, who controls the Senate floor, continues to see the issue as a loser for Republicans, despite a wave of similar overhauls embraced by states across the country,” the Times opined. “He has argued that the issue divides Republicans, many of whom remain averse to lessening criminal penalties of any kind, and could dampen enthusiasm at the polls.”

It will be up to Sen. Charles E. Grassley (R-Iowa), the influential chairman of the Judiciary Committee and the lead author of the bill, to change McConnell’s mind. Grassley thinks President Trump’s desire for legislative accomplishments could sway McConnell.

Majority Whip John Cornyn (R-Texas), who supported SRCA two years ago, opposed this year’s bill. Cornyn unsuccessfully urged his Judiciary Committee colleagues last week to focus on the alternate bill “that we can actually get a presidential signature [on] and pass it into law.” Four other Republicans voted against the bill as well. One conservative pundit, no fan of SRCA, said last Friday, “With committee Republicans this divided and the administration opposed to the bill, it seems certain that Majority Leader McConnell will not bring up the leniency legislation. I think it is dead this year…”

Grassley admits SRCA faces resistance McConnell, who “doesn’t want to bring it up.” During the last Congress, McConnell refused to give floor time to the criminal justice bill because of the number of Republican senators in tough reelection races. “He doesn’t have that problem now,” Grassley said. “We only have 10 Republican senators up [for reelection in November]. This bill can easily get 60 votes.”

sessions180215Attorney General Jefferson Beauregard Sessions III’s opposition to the bill may actually help its chances. may help the bill’s chances. Sessions has angered many senators with what they see as broken promises and personal attacks. Last week, as we reported, he infuriated Grassley, a long-time friend, with a letter opposing SRCA that Grassley found insulting. The Wall Street Journal reported, “Some experts said these fights could cost Mr. Sessions allies in the Senate at a time when he has few friends in the administration.” Being able to stick the Senatorial thumb in Sessions’ eye may spur McConnell to call the bill for a vote.

NY Times, Senate’s Renewed Push for Sentencing Overhaul Hits a Familiar Roadblock (Feb. 15, 2018)

Politico, Criminal justice overhaul advances amid Grassley-Sessions spat (Feb. 15, 2018)

Wall Street Journal, Attorney General Jeff Sessions Is Battling His Own GOP on Multiple Fronts (Feb. 15, 2018)

– Thomas L. Root


Dropped Calls: FCC, Wireless Carriers Seek to Block Prison Cellphones – Update for February 16, 2018

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


Just this week, two officers at South Mississippi Correctional Institution in Greene County were arrested after they were caught with contraband during the first major shakedown of the year under Operation Zero Tolerance. And in California, Federal officials using a task force of 750 officers rounded up dozens of suspects early Wednesday to disrupt what they described as a massive street and prison gang conspiracy to distribute methamphetamine, cocaine and heroin using social media, coordinated between street gangs and prison gang leaders who used cellphones smuggled into prisons to coordinate their activities.

cellphone180216All of this points to the serious problem prison officials have combatting the infiltration of cellphones into facilities. But BOP officials and members of Congress say they’re hopeful that a meeting last week with wireless industry representatives will lead to a solution that combats security issues posed by cellphones in prison. The Federal Communications Commission hosted the meeting, making good on a promise last year by FCC Chairman Ajit Pai to help facilitate conversation among law enforcement, prisons officials and wireless providers to address the issue that corrections officers say is their chief safety threat behind bars.

Prisons officials say cellphones — smuggled into institutions by the thousands, by visitors, employees, and even delivered by drone — are dangerous because inmates use them to carry out crimes and plot violence both inside and outside prison. The FCC has said it can’t permit jamming in state prisons, but it has permitted a test of signal blocking at FCI Frostburg in January. Wireless industry groups oppose jamming. In a letter filed with the FCC last month, a trade group wrote that court orders should be required to shut down devices in prison.

cellsandwich180216“I am encouraged by how seriously the FCC is taking the issue of contraband cell phones in prisons,” Congressman David Kustoff (R-Tennessee) told The Associated Press. “I look forward to the telecommunications industry working with state corrections officials to put a stop to this concerning public safety threat.” Kustoff has been among those pushing for a fix to the phone problem. He spoke with AP after being briefed by his state prisons director, who was one of several attending the meeting.

Representatives from the U.S. Department of Justice and BOP attended the meeting, as did Congressman Mark Sanford (R-South Carolina), who has spoken out about the issue of cellphones in prison since his time as South Carolina’s governor from 2002 to 2010.

The FCC has been softening on the jamming issue, thanks to persistent pleas from state and federal officials. The BOP test in January, is said to have been successful. Previously, the problem has been how to jam the illegal cell phone signals inside the prison but not interfere with legitimate cell signals just outside the prison walls, such as those from first responders. Proponents of the latest tests say the technology has advanced and the range is now more predictable. Assistant U.S. Attorney General Beth Williams told AP that the test represented “a big step” and could lead to the broader use of such technologies.

AP, FCC schedules meeting to address prison cellphone issues (Jan. 25, 2018)

Inside Towers, Pai Calls on Carriers to Help Block Illegal Prison Cell Phone Signals (Feb. 6, 2018)

Wireless Week, Corrections, Congress ‘Encouraged’ by Prison Phones Meeting (Feb. 10, 2018)

– Thomas L. Root



AG Sessions is a Chess-Playing Pigeon – Update for February 15, 2018

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





The Senate Judiciary Committee’s consideration of the Sentencing Reform and Corrections Act (S.1917), a bill which injects some sanity into both sentencing and rehabilitation policies, comes to a head with a mark-up and vote today. And unsurprisingly, the Attorney General – who never met an inmate he didn’t think should be serving multiple life sentences – weighed in on the widely-supported measure yesterday.

argueidiot180215In a letter to the Committee, Attorney General Jefferson Beauregard Sessions III warned that S.1917 “would reduce sentences for a highly dangerous cohorts of criminals, including repeat dangerous drug traffickers and those who use firearms and would apply retroactively to many dangerous felons, regardless of citizenship or immigration status,” Sessions wrote.

Of course, the bill would only entitle persons convicted and sentenced in ways unintended by Congress when it wrote 18 USC 924(c) and some other recidivist statutes to ask their sentencing judges for a reduction under 18 USC 3582(c)(2). The judge is entitled under that statute to grant the request in full, deny it in full or grant it only in part. But the AG hardly trusts federal judges – the people who impose sentences to begin with – to make a reasoned decision about the risk that sentence reduction will create when “a highly dangerous cohorts of criminals” is involved .

sessions180215The Attorney General’s scolding was not well received by Sen. Charles Grassley (R-Iowa), chairman of the Committee. The Washington Post reported Sen. Grassley was “incensed” at Sessions “for trying to derail a bipartisan bill that would reduce mandatory prison terms for drug offenders on the eve of its first procedural vote.” Sessions and Grassley have long been at odds over the measure, which reduces the length of mandatory minimum sentences for repeat nonviolent drug offenses, eliminates the “three strike” provision of 18 USC 3559(c)(1) that requires a life sentence, and gives judges greater leeway to impose sentences under the mandatory statutory minimum sentences for some offenses, when certain conditions were met. The reforms embraced by the bill fly in the face of Sessions’ bid to wage a new war on drugs, leading him to label the bill a “grave error.”

Grassley wasted no time publicly blasting Sessions, giving the AG what the Post called “a short reminder about who in the government makes the federal laws — and who is supposed to follow them.”

tweet180215In October 2015, the panel passed an identical measure, sending it on to the full Senate by a 15-5 vote.

Committee members anticipated Sessions’ outcry. Last week, the Committee spent most of its hearing time debating how best to get favorable action in the Senate. John Cornyn (R-Texas), one of the bill’s sponsors, said, “Given the opposition of the Attorney General and given the vocal opposition of some law enforcement groups, I honestly don’t see a path forward for that bill…”

Cornyn, who serves as Senate majority whip, said Senate Majority Leader Mitch McConnell (R-Kentucky) would be more likely to bring a prison reform bill to the floor than a sentencing reform package that might be a wedge within the Republican caucus. Cornyn said the committee’s best opportunity to move a criminal justice bill would be his legislation, proposed along with Sen. Mike Lee (R-Utah) and Sheldon Whitehouse D- Rhode Island), which contains only provisions aimed at easing re-entry for prisoners — “and then building on that as we can” with a sentencing amendment process on the floor.

Sen. Dick Durbin (D-Illinois), a prominent co-sponsor of the bill, disagreed, saying the Senate should not abandon bipartisan legislation just because the administration does not fully support it. “It’s a sad day if we are saying that we will not consider a measure in the halls here of the Senate Judiciary Committee if the attorney general of the United States opposes it,” Durbin said at the committee meeting. “For goodness sakes, have we reached that point? I hope not.”

“I’m worried that if we just revisit the Sentencing Reform and Corrections Act, which failed during the Obama administration, given this change in the new administration and its views on the sentencing reform component of it, we’re going to have nothing to show for our efforts,” said Cornyn, using the bill’s formal title. “I know we all tried to work together on this and it just didn’t work out.”

bipart160307Sen. Grassley said at the time the compromise SRCA bill would be the best way to get the sentencing and prison provisions into law. “It’s a matter of process and around here — nothing gets done unless it’s bipartisan. And I don’t often agree with Sen. Durbin, but we put together a bill that we worked really hard and we think it’s the only way of advancing both bills… There’s some people around here [who] are just a little bit afraid of what you call an Assistant U.S. Attorneys Association and they’re stopping everything from being done that is so successful in the other states. And when some people are willing to stand up to those leaders of the Senate, we’ll get something done in both areas.”

Congress is expected to remain focused on immigration-related debates for the foreseeable future, as the March 5th deadline for the expiration of the Deferred Action for Childhood Arrivals program approaches.

One political observer, who writes under the pen name “root” (and has nothing to do with the author of this blog), said he has spoken to Grassley, and that the Senator “plans to use his substantial political clout to press Trump to change his mind.” The commentator said,

Trump bends over backwards to keep Grassley happy. He knows that as Judiciary Chairman, Grassley played a crucial role in delivering two of Trump’s biggest successes so far: the confirmation of Supreme Court Justice Neil Gorsuch and a modern record for circuit court judges in a president’s first year. ‘I’ve carried a lot of water for the White House,’ Grassley told me. ‘They ought to give some consideration for the close working relationship we’ve had on issues we agree on… I think people at the White House have not wanted to go against Gen. Sessions,’ he added, before closing with a sentence crafted perfectly to appeal to Trump’s ego. ‘This is an opportunity for a bipartisan victory by the President of the United States’.

Washington Post, Grassley ‘incensed’ by attorney general’s attempt to stymie sentencing reform (Feb. 14, 2018), root, Grassley twists Trump’s arm for criminal justice reform (Feb. 11, 2018)

Reuters, U.S. attorney general opposes plan to reform prison sentencing (Feb. 14, 2018)

District Sentinel, Senate Committee to Advance Criminal Justice Reform Once Opposed by Jeff Sessions (Feb. 8, 2018)

Roll Call, Senators Ponder How to Break Criminal Justice Logjam (Feb. 9, 2018)

Courthouse News Service, Cornyn Sees No Way Forward for Sweeping Criminal-Justice Reform (Feb. 8, 2018)

– Thomas L. Root


A Kinder, Gentler Robbery – Update for February 14, 2018

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



violence160110The 9th Circuit threw out Donnie Lee Walton’s conviction under the Armed Career Criminal Act last week, holding that Alabama first-degree robbery under Criminal Code § 13A-8-41 was not a violent felony under the ACCA, because the force required to support a conviction for 3rd-degree robbery (in the same statute) is not sufficiently violent to render that crime a violent felony under the ACCA, and the Government waived any argument that the statute is divisible.

At the same time, Donnie’s panel held that United States v. Dixon, a 9th Circuit case holding that California robbery is not a violent felony under the ACCA’s force clause because it can be committed where force is only negligently used and because the statute is indivisible), requires a holding that California 2nd-degree robbery under Penal Code § 211 is not violent, either.

United States v. Walton, Case No. 15-50358 (9th Cir., Feb. 1, 2018)

– Thomas L. Root


1st Circuit Says 2255 Rose by Any Other Name Would Still Smell – Update for February 13, 2018

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


Just in time for Valentine’s Day, advice about roses. Well, about 2255 roses.

valentine180213A “2255” – regular readers will recall – is the post-conviction motion pursuant to 28 USC 2255 that federal prisoners are entitled to file. A 2255 motion essentially does duty as a petition for habeas corpus. A 2255 motion may attack a conviction or a sentence, almost always on the basis that said conviction or sentence was unconstitutional in some manner. The statute places some genuine strictures on its use: it must be filed within a year of the conviction becoming final, or within a year after the Supreme Court issues a holding on constitutional law that is made retroactive for people already convicted. The only one of those in recent history – and the one we’re concerned with today – is Johnson v. United States, a 2015 SCOTUS decision that invalidated part of the Armed Career Criminal Act.

Before Johnson, there were three ways a prior offense could be a crime of violence. It had to be either

(1) an enumerated offense (burglary, arson, extortion or use of explosive”); or

(2) an offense that has as an element the threatened use or actual use of physical force against a person; or

(3) an offense that presents a significant risk of physical harm to others.

The first clause is called the “enumerated clause,” because it enumerates certain offenses that count, period. The second is called the “force clause” or “elements clause,” because it relates to crimes that include elements of purposeful force. The third is called the “residual clause,” because it sweeps up what’s left.

Johnson151213In Johnson, the Supreme Court said the residual clause was so vague that no one could figure out what it meant. For that reason, it was unconstitutional to use the residual clause to declare a crime to be one of “violence.” Before then, crimes such as drunk driving, possession of a short-barreled shotgun, and fleeing the cops were violent crimes, because someone might have been hurt. After the Johnson decision, only the enumerated crimes and those where force was used or threatened could count.

Then came Mathis v. United States. Essentially, Mathis emphasized that a rose was not always a rose. States have many different spins on laws, so what one state might call a burglary another might call something else altogether. The courts decided that when the ACCA said “burglary” or “extortion” or something else, it referred to some nonexistent common-law ideal, what those crimes were generally thought to be before the states started writing statutes.

burglar160103Mathis led courts into the world of deciding whether statutes were divisible or indivisible, and whether the statute’s language – when read with other statutes defining terms – met the definition of the generic ideal of the crime or not. Most commonly, to provide a “fer instance,” the courts agreed generic burglary required breaking and entering a building for the purpose of committing a felony. Some states use the term “structure,” which is all right provided a “structure” is not defined to include such non-buildings as cars, airplanes, boats and train cars. But many states do include these things. When Bernard Burglar is convicted of 2nd degree burglary in a state, under a statute that includes cars and boats and RVs as “structures,” the burglary conviction is too broad to count as an ACCA burglary.

Whew! All right, with that prolix prologue, let’s consider today’s three 2255 movants. The trio filed motions seeking to invalidate their ACCA sentences on the grounds that their respective state burglaries no longer qualified as generic burglaries after Mathis, and – because they could no longer count as “residual clause” crimes of violence due to Johnson, the defendants no longer had the required three prior offenses to qualify for the ACCA’s 15-year minimum sentence.

The problem the 2255 filers faced was that they had submitted their motions more than a year after Johnson, and their claims really seemed to involve Johnson only tenuously. Last week, the 1st Circuit rejected all three petitions as untimely.

johnsonretro160103The rule, as we noted, is that a petition relying on a change in the law has to be filed within a year after the decision, if the that decision was made retroactive. Johnson was made retroactive. Mathis was not.

Each inmate argued that he was sentenced under the ACCA’s now-voided residual clause, so his sentence had to be vacated, and he could not be resentenced under the enumerated offense clause because of Mathis. In each case, the district court did not say at sentencing which of the three “crime of violence” clauses applied to the ACCA sentence, but after the 2255s were filed, the sentencing judges said the enhanced sentences had been based on the enumerated offense clause, not the residual clause. The 1st Circuit said, “Although these findings were… not expressly stated at the time of sentencing, we give them due weight because the habeas judge was describing his own decisions at sentencing.

nodice180213The Circuit said no dice. In order to even arguably invoke Johnson, the prisoners had to first argue that their ACCA enhancement could not be enumerated offenses because Mathis rendered the burglaries a nongeneric offense. That, the Circuit said, “is the essence of a Mathis challenge. To hold otherwise would create an end run around AEDPA’s statute of limitations. It would allow petitioners to clear the timeliness bar by bootstrapping their Mathis claims onto Johnson claims, even where, as here, the merits of their case entirely depend on whether their previous convictions still qualify as ACCA predicates in light of Mathis.”

Calling a Mathis claim a Johnson claim is, therefore, not like calling a rose by any other name.  Rather, it’s more like calling an ox a bull – he’s grateful for the honor, but that does not give him what he needs to really be a bull (apologies to Ben Franklin).

Dimott v. United States, Case No. 16-2289 (1st Cir. Feb. 2, 2018)

– Thomas L. Root


BOP Finally Releases Compassionate Release Numbers… And They’re Not Impressive – Update for February 12, 2018

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


Nearly six months after 16 Senators requested it, the Bureau of Prisons has finally come off compassionate release numbers for the last three years.

compassion160124Under 18 USC 3582(c)(1), a prisoner who has extraordinary reasons – usually medical, age-related or family-related – may receive a reduction in sentence (RIS). An inmate must first get a recommendation from the institution warden, and then approval of the BOP Director. If the Director forwards the motion to the sentencing court, the district judge will then decide the motion.

From January 1, 2014, through the end of 2017, 3,182 inmates sought RIS relief. Only one out of four made it past the first level of review, the warden of the prison in which the inmate was held. At the Director’s office, only 306 requests, or 9.6% of the total originally filed, made the cut.

About 25% of RIS requests came from dying inmates. Another 35% came from seriously ill (but not terminal) inmates. Elderly inmates with medical conditions were another 15%, and elderly inmates who were otherwise healthy constituted 8%. Inmates who were sole caregiver for a child constituted 9% of the requests, and people needing to care for a spouse were 3.4% of the requests.

RIP180212The RIS requests with the most chance of approval came from terminally ill inmates. One half of all such requests made it to the Director. Another 16% of requests from seriously ill inmates were referred. One out of four requests from elderly prisoners with medical conditions made the cut, while one-third of healthy elderly prisoners’ requests were approved by wardens. Approvals for caregivers of spouses and kids came in at under 15%.

It takes about 4-1/2 months to get the Director’s approval. The BOP did not break down which categories were approved in what numbers by the Director, but it admitted that 81 inmates died while waiting for approval of their RIS requests.

The BOP has been engaged in an inter-agency fight with the Sentencing Commission for control of the compassionate release process for more than a year. The Sentencing Commission believes that the BOP should only determine that inmates meet eligibility standards, and leave decisions about whether they are deserving of a lower sentence to judges.

The BOP told the Senators that RIS requests were usually denied because its criteria were not met, including

• the inmate did not meet the medical condition criteria;
• the inmate’s medical condition did not impact ability to function in prison;
• the inmate had not served enough time toward his sentence required by the elderly inmate criteria;
• the inmate could not show he or she was the sole family member capable of providing care to a child, spouse, or registered partner; or
• the inmate lacked stable residence and release plans.

roulette180212The sentencing advocacy group Families Against Mandatory Minimums was quick to blast the BOP letter. “We are disappointed but not surprised,” FAMM president Kevin Ring said. “Even as interest in prison reform grows, we find that the BOP is not using its authority to reduce the number of low-risk, high-cost individuals in federal prisons. This failure hurts families and taxpayers without improving public safety.”

Sentencing Law and Policy, Lamenting latest data on how federal Bureau of Prisons administers its compassionate release program (Feb. 9, 2018)

FAMM, New Data Reveals BOP Still Neglecting Compassionate Release (Feb. 8, 2018)

Letter from BOP Office of Legislative Affairs to Sen. Brian Schatz (Jan. 16, 2018)

– Thomas L. Root


Could Sessions’ War on Pot Light Up Congress? – Update for February 8, 2018

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


sessions180119Last week, after Attorney General Jefferson Beauregard Sessions III gave federal prosecutors free rein to begin marijuana busts even state law allows possession and sale, dozens of lawmakers from both parties are seeking legislation that would handcuff Sessions on pot.

“It has awakened a sleeping giant,” Dana Rohrabacher (R-California) said of the Congressional response to Sessions repealing the Cole memorandum, a policy from the Obama administration that tolerated pot companies in states that legalized the drug. “The move by Sessions on the Cole memo has really activated people who were not active before, both inside Congress and across the country,” Rohrabacker was quoted as saying by BuzzFeed News.

Last Tuesday, 54 lawmakers sent President Trump a letter asking him to honor his campaign promise to leave marijuana “up to the states” and override Sessions. A few weeks earlier, 69 lawmakers — including 15 Republicans — sent House leadership a letter urging them to adopt an amendment in the next annual spending bill.

marijuana160818The measure would prevent the Justice Department from using any funds to interfere with a state’s marijuana legalization scheme, similar to prior thereby staving off Sessions. There is precedent for this. Since December 2014’s passage of the Consolidated and Further Continuing Appropriations Act of 2015, Congress has effectively prohibited federal prosecution for medical marijuana sale and use that complies with state law by denying DOJ the right to spend any money to prosecute for conduct that complies with state law. Congress has the power to do the same for recreational marijuana laws, and courts have recognized that the spending ban prevents DOJ prosecution of people in those states.

Anything that drives a wedge between Congress and Sessions lessens the extent of the AG’s influence in keeping Congress from enacting sentencing reform (although it still leaves the President to mollify).

BuzzFeed, Jeff Sessions is making Congress mad with his pot policy, and it may backfire (Jan. 29, 2018)

United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016)

– Thomas L. Root


Sky Pilot – Update for February 7, 2018

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


A BOP prison chaplain’s quest to disarm chaplains won out, as the agency announced last month that chaplains will no longer be required to carry pepper spray. 

priest180208Last November, the agency agreed that Rev. Ronald Apollo, a retired Air Force chaplain now serving as a BOP chaplain did not have to carry pepper spray. Earlier last year, the BOP had mandated that all workers in medium and high security institutions to carry around spray last year, prompted by a federal law passed in 2015 to keep prison staff safe. Rev. Apollo refused, arguing the rule violated his religious beliefs and jeopardized the impartiality he needs to counsel prisoners and win their trust. 

BOP’s personnel classifications exempt chaplains from firearms training and hold that “in the event of an actual disturbance the professional skills of a chaplain will be applied in another way.” Rev. Apollo argued that requiring him to carry spray violated he classification and the Religious Land Use and Institutionalized Persons Act.

“Now we are able to work on a level to do everything we could do before, in the same capacity, exactly how we were doing it before when… spray was never an issue,” Rev. Apollo said. “We still respond to alarms, we still preach, we could counsel and we’re free to go about all areas of the institution like the ministers we were hired to be without any reservations.

The Marshall Project, The Bureau of Prisons Yields to a Chaplain’s Conscience (Jan. 26, 2018)

– Thomas L. Root


Not Enough Fraud for a 60(b) Motion – Update for February 6, 2018

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


Adarus Black, convicted of a drug conspiracy and escape, filed a post-conviction motion under 28 USC 2255 in 2013. It was denied. He returned several years later with a motion under Fed. Rule of Civil Procedure 60(b), which lets a party petition to set aside the judgment for new evidence, fraud on the court, and other sundry reasons. Adarus wanted the 2255 judgment set aside for eight different reasons.

fraud180206The district court made short work of two of Adarus’ five Rule 60(b) grounds on the merits, but it sent the other three to the Court of Appeals. Ever since the 2005 Supreme Court decision in Gonzalez v. Crosby, a movant filing a 60(b) motion to set aside a judgment denying a 2255 motion was considered to be filing a “second-or-successive motion,” for which advance permission has to be obtained from the court of appeals (something hardly ever given). A Rule 60(b) motion escapes the “second-or-successive” label only if it “attacks a defect in the integrity of the federal habeas proceedings.”

Last week, the 6th Circuit ruled that two of the three claims Adarus made that had been referred to it were second-or-successive claims that could not be brought in a 60(b) motion (and for which approval would not be forthcoming). But in the final claim, Adarus claimed that the Assistant U.S. Attorney prosecuting his case “perpetrated fraud on the Court” before and during his criminal trial. The Gonzalez decision said that fraud on the court is “one example of… a defect” in 2255 habeas proceedings that could be raised without running up against the “second-or-successive” rule.

But the 6th held that Adarus’ 60(b) fraud claims did not make the cut. “Fraud on the court” refers to “fraud on the federal habeas court,” the Circuit said. Because Adarus’ fraud-on-the-court argument “concerns only the prosecutor’s conduct during the underlying criminal trial, he has not called into question the integrity of the federal habeas proceedings.” Adarus’ mistake was that he did not show that the fraudulent conduct during the trial proceedings tainted the district court’s assessment of his federal habeas petition. Fraud on the 2255 court, the 6th held, “requires proof that fraudulent conduct was willfully ‘directed to’ the court that was deceived.”

In re Black, Case No. 17-2147 (6th Cir., Jan. 31, 2018)

– Thomas L. Root


President Throws His Weight (Sort of) Behind Prison Reform – Update for February 5, 2018

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


education180205During his State of the Union address last Tuesday, President Trump said his administration will pursue reforms to federal prison system reentry programs. “As America regains its strength, this opportunity must be extended to all citizens,” Trump said. “That is why this year we will embark on reforming our prisons to help former inmates who have served their time get a second chance.”

Trump brought up prison reform again last Thursday in a speech to GOP legislators during their retreat in West Virginia. “We can reform our prison system to help those who have served their time get a second chance at life,” he told the lawmakers.

A sharp split remains in Congress over sentencing reform, but there seems to be a consensus on prison reform. The difference between the two is this: sentencing reform focuses on reducing potential sentences – including mandatory minimums – while prison reform offers more reentry programs in prison, for which prisoners could get up extra days off for completing approved programs.

reform160201Trump’s comments are a change in tone for the President, who made tough-on-crime talk a standard of his 2016 presidential campaign. But even as he embraces prison reform, Trump suggests his Administration might seek tougher drug laws in response to the opioid crisis.

Supporters of reform are expressing cautious optimism that a deal can be made to improve conditions in federal prisons, bolster anti-recidivism efforts and allow federal prisoners to earn “time credits” for making it through education or other programs, despite legislative clashes over immigration and opioids and the impending midterm elections. Rep. Doug Collins (R-Georgia), an author of the bipartisan Prison Reform and Redemption Act (H.R. 3356), called the moment of apparent consensus “a unique opportunity.”

Ohio State University law prof and sentencing expert Doug Berman wrote last week that while “‘back-end’ prison reforms to facilitate earlier release from prison for all federal offenders and enhanced reentry efforts are quite possible and may truly be a priority for the Trump Administration; it would also seem that “front-end” sentencing reforms to reduce mandatory minimum terms for drug trafficking offenses many not be possible and may be actively opposed by the Trump Administration.”

The New Republic said that “reducing mandatory minimums and over-criminalization will be a tough sell, while programs to help prisoners re-enter society and find jobs could find a receptive audience in the White House.” However, the Administration cut back on BOP education programs last May, and further BOP job cuts may make it hard for the agency to find enough people to direct rehabilitation programs. Fewer staff means fewer programs means fewer qualified courses means fewer additional good-time credits. The New Republic said, “It would be a Nixon-in-China moment if Trump genuinely tried to combat mass incarceration—which is to say, it’s highly unlikely.”

nixon180205Yet less than a week later, the same author in the same magazine suggested that “Trump’s rhetoric of late gives hope for bipartisan efforts in Congress to push through a criminal-justice reform bill this year. While Trump prides himself as a master dealmaker, he’s been content to let Republican lawmakers and his top advisers sketch the details of major legislation on health care, tax reform, and immigration. As long as he’s not actively hostile to whatever lawmakers send him, reformers could find Trump more amenable to the final package if they can convince him it’s a win.”, Trump says in SOTU that Administration will pursue prison reforms (Jan. 30, 2018)

Gant News, ‘American carnage’ President presides over prison reform push (Feb. 2, 2018)

Sentencing Law and Policy, Prez Trump, in his first State of the Union address, mentions “reforming our prisons” and need to “get much tougher on drug dealers” (Jan. 30, 2018)

The New Republic, Is Trump serious about prison reform? (Jan. 30, 2018)

The New Republic, A Chance for Criminal-Justice Reform Under Trump (Feb. 5, 2018)

– Thomas L. Root