Tag Archives: 2244

2nd Circuit Says Mathis Is Nothing Special – Update for July 14, 2017

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

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YESTERDAY WAS A BUSY ONE IN MANHATTAN

silver170714All right, we’ll lead with what everyone is talking about: Yesterday, a three-judge panel of the 2nd Circuit – while holding its collective nose – threw out former New York State Assembly Speaker Sheldon Silver’s 2015 fraud and corruption conviction. As soon as the U.S. Attorney for the Southern District of New York could put down his coffee cup, he announced that his office would retry the case.

And why not? The Court of Appeals almost begged the prosecution to retry the case, this time with a correct set of jury instructions. “We recognize that many would view the facts adduced at Silver’s trial with distaste,” Judge José Cabranes wrote. “The question presented to us, however, is not how a jury would likely view the evidence presented by the government. Rather, it is whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty. Given the teachings of the Supreme Court in McDonnell, and the particular circumstances of this case, we simply cannot reach that conclusion.”

The Court ruled that the evidence in Silver’s high-profile trial was certainly enough to convict him of money laundering, Hobbs Act extortion and honest services fraud. But after the Supreme’s decision last summer in McDonnell v. United States, which narrowed the definition of “official acts,” a necessary element of bribery, the panel said the trial court erred by not properly instructing the jury on the charges of honest services fraud and extortion.

But we march to the tune of a different drummer, so our focus is on yesterday’s 2nd Circuit decision in Washington v. United States, one much more consequential to federal inmates.

burglary160502The Supreme Court’s decision last year in Mathis v. United States dramatically tightened the rules used in determining whether defendants’ prior state convictions fit the generic definitions of crimes used in “crime-of-violence” definitions sprinkled throughout the U.S. criminal code. The stakes are high: two defendants may have both committed three of the same types burglaries before being caught with a gun. But because the state statute under which one was convicted defined burglary to include breaking into cars as well as houses, those burglaries are not “burglaries” as defined in the Armed Career Criminal Act. That defendant gets 60 months in prison.

The other guy was convicted in a neighboring state’s statute, which defines burglaries as being committed only on structures. That is not too broad, so his burglaries qualify him for sentencing as under the Armed Career Criminal Act. He will get at least 180 months (15 years) under the ACCA, no matter how the judge might feel about it.

The ACCA is where the battle has mostly been fought, but similar “crimes-of-violence” definitions are used in the Sentencing Guidelines, in the statute on carrying a gun during a crime of violence (18 USC 924(c)) and in the general crime-of-violence definition in 18 USC 16(b), which has great consequence for immigrants subject to deportation for serious crimes.

diagram170714So Mathis, which limited when courts could look at the actual burglary conduct of the defendant and tightened how statutory terms could be defined (remember sentence diagrams in 7th grade English?), is as important to defendants as it is arcane. Of course, equally important to the defendants who have already been convicted and sentenced based on prior crimes of violence is whether the redefinition of the interpretative rules in Mathis is retroactive to their cases. Is Mathis a get-out-of-jail card?

The law substantially limits second bites of the post-conviction apple. Inmates who have filed habeas corpus motions under the statute (28 USC 2255) may not file second 2255 motions without getting prior permission from a court of appeals under 28 USC 2244. That permission is granted only where the new decision that will free them – in this case Mathis – is retroactive. If it’s retroactive, inmates have one year from the new decision’s issuance to file their second 2255.

There were some less-than-scrupulous “paralegal” firms busy earlier this year convincing inmates that they had to file for relief under Mathis by June 22, the one-year anniversary of Mathis. We complained a few months ago that there was no way Mathis could be held to be retroactive, and that filing a 2244 motion with the court of appeals was a waste of time and money.

Some guys didn’t get the message. One was Ronnie Washington, who was sentenced to 240 months’ imprisonment as a career offender under § 4B1.1 of the advisory Sentencing Guidelines. His 2244 motion to the 2nd Circuit asked permission to file a new 2255 motion on the grounds that his prior state law convictions for drug trafficking was unconstitutional in light of Mathis. Yesterday, the Court of Appeals turned him down.

A second or successive 2255 motion on a ground not previously presented is allowed only if the court of appeals certifies that the motion is based on either newly discovered evidence or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

mathis170714Ronnie argued that Mathis “established a new rule that makes” his unconstitutional. The Court disagreed, finding that Ronnie’s “view of Mathis is without merit, as its holding was not based on the Constitution and was based on a rule applied for decades,” at least since the Supreme Court’s 1990 decision in Taylor v. United States. The Court said, “In sum, the Mathis Court was interpreting ACCA, not the Constitution… And although the Mathis Court noted that its ACCA interpretation had been based in part on constitutional concerns, those concerns did not reflect a new rule, for “Taylor set out the essential rule governing ACCA cases more than a quarter century ago.”

The 2nd Circuit decision joins those of three other circuits – the 5th, 7th and 11th – in holding that whatever Mathis may be, it’s not retroactive.

Washington v. United States, Case No. 17-780 (2nd Circuit, July 13, 2017)

– Thomas L. Root

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A Pair of Second-and-Successive 2255 Decisions – Update for June 5, 2017

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

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AVENUES FOR SECOND-AND-SUCCESSIVE 2255 MOTIONS NARROWED

Most everyone is familiar with the rule that a defendant cannot file a second motion under 28 USC 2255 without prior permission from the court of appeals, granted under 28 USC 2255(h). To get permission, generally, a prisoner has to show either that there is a new retroactive change in the law made by the Supreme Court, or that there is some newly-discovered evidence – that could not have reasonably been found before – which will just about assure that he or she would have been found not guilty.

courthouseclosed170605The 9th and 11th Circuits handed down decisions on second-and-successives last week that restrict the ways prisoners can obtain leave to file. The 9th Circuit decision on intervening judgments is relatively unsurprising; the 11th Circuit decision – which drew a concurrence joined by two of the three judges on the panel denouncing the precedent the decision was obligated to follow – cements the 11th Circuit’s reputation as the most unfriendly forum for a federal prisoner seeking a means to raise a constitutional issue after his or her own go-around with a 2255 motion.

LISAStatHeader2smallNinth Circuit – Sentence Reduction Win Does Not Reset the 2255 Clock

If a defendant is lucky enough to have an intervening judgment, however, the clock is reset. So if Donnie Defendant wins a 2255 motion saying his lawyer messed up his sentencing, getting resentenced as a result, he will then be able to appeal the new sentencing and, after that, file another 2255 motion without getting any special permission.

reductions170605Chris Sherrod filed and lost his 2255 motion in 2014. The next year, however, he won a reduction in his drug sentence under 18 USC 3582(c)(2) based on the Sentencing Commission’s 2-level reduction issued in 2014.

After that, Chris filed another 2255 motion, arguing he did not need permission for a second-and-successive 2255, because the 3582(c)(2) sentence reduction was a new, intervening sentence. Last week, the 9th Circuit disagreed.

The Circuit said a 3582(c)(2) resentencing is “intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” A district court ruling on a 3582(c)(2) makes only a limited adjustment to the sentence, and claims of error at the original sentencing cannot be raised.

For that reason, the 9th joined the 5th and 7th Circuits in holding that a 3582(c)(2) sentence reduction does not qualify as a new, intervening judgment, and therefore “does not wipe clean the slate of habeas applications that a prisoner has previously filed.”

Sherrod v. United States, Case No. 16-72178 (9th Cir., June 2, 2017)

LISAStatHeader2smallEleventh Circuit – Mathis Does Not Allow Raising Old Issue in Second 2255, No Matter How Wrong The Prior Denial Might Have Been

Orestes Hernandez was sentenced to 775 months imprisonment, 300 months of which came from three mandatory-minimum enhancements he got under 18 USC 924(c) for using a gun. After his conviction, he filed a 2255 motion that was denied.

Sentencestack170404After the 2015 decision in Johnson v. United States, Orestes asked for permission to file a second 2255 arguing that the three 924 convictions were no longer based on a crime of violence. The 4th Circuit denied his application, reasoning that his indictment showed that he was convicted under the Hobbs Act subpart that required a use of force.

However, after the decision in Mathis v. United States last summer, Orestes filed for permission to try a 2255 motion again. Using the rules outlined in Mathis, he said, there was no way his Hobbs Act conviction could be considered a crime of violence under 924(c)(3)(A)’s use-of-force clause.

Last week, the 11th Circuit denied him permission to go forward. A year ago, the Circuit handed down In re Baptiste, which held that under 28 USC 2244(b)(1) – which governs second-and-successive 2255 applications – a claim presented in the second-and-successive application that was raised in a prior application must be dismissed. Because Orestes previously filed a second-and-successive application based on Johnson, the 11th said, Baptiste prohibits his filing again.

Orestes argued that Mathis permitted the filing, but the appeals panel said “Mathis does not provide an independent basis for his application, as the Supreme Court’s holding in Mathis did not announce a ‘new rule of constitutional law’” under 28 USC 2255(h). Instead, Mathis just “provided guidance to courts in interpreting an existing criminal statute. “

eye-needle170605In a concurring opinion, Judge Martin (joined by Judge Jill Pryor) denounced the Baptiste rule. “Mr. Hernandez asks us to make sure the crimes he was charged with qualify as crimes of violence so as to justify the 25 extra years he received under § 924(c),” they said. “However, we are barred from reviewing his application by In re Baptiste… which held that ‘the federal habeas statute requires us to dismiss a claim that has been presented in a prior application’ to file a § 2255 motion. I have stated my view that this bar created by our Court in Baptiste has no basis in the text of the habeas statute.”

In re Hernandez, Case No. 17-11989E (11th Cir., May 31, 2017)

– Thomas L. Root

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