Tag Archives: 2255

3rd Circuit Expands Second-and-Successive 2255 Rights – Update for September 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.

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ZAX’S PATIENCE REWARDED IN THE 3RD CIRCUIT

We reported several weeks ago that the 4th Circuit had joined the 6th in dodging the lingering question of whether Johnson v. United States applied to mandatory Guidelines sentences. Now, the 3rd Circuit has stepped into the breach.

violence151213The Armed Career Criminal Act provides that people with three prior convictions for serious drug offenses or crimes of violence face stiff mandatory minimum sentences. A crime of violence is defined as one of four specific offenses – burglary, extortion, arson or use of explosives – or any other crime that has as an element the actual or threatened use of physical force.

Up to two years ago, the ACCA’s definition has a third subcategory known as the residual clause. A crime of violence also included any crime that carried a substantial risk of physical harm to another. In Johnson, the Supreme Court ruled that this residual clause was so vague that the average person could not tell what offenses counted and what did not. Such a vague statute violates a defendant’s 5th Amendment due process rights. Because Johnson meant that a number of people serving ACCA sentences were in fact innocent of their offense, the Supreme Court held that it was retroactive, that is, that people already convicted could apply to courts with a 28 USC 2255 motion to obtain relief.

At the time, the ACCA definition of “crime of violence” appeared elsewhere in the criminal code as well as in the Guidelines, where it was used in several sections, especially in Chapter 4 to label someone a “career offender.” A “career offender” under the Guidelines faces dramatically increased sentencing ranges. Naturally, defendants serving long career offender sentences promptly filed for relief as well, despite the fact that Johnson only encompassed the ACCA, and not the Guidelines.

limitone170912Every federal criminal defendant is entitled to file one and only one 2255 motion after conviction, that filing being due within a year of the conviction becoming final. In order to file a second 2255, the defendant must request permission from the Court of Appeals first. Permission is granted only under limited circumstances, where there is newly discovered evidence that convincingly proves innocence, or where a new rule of constitutional law – like the Johnson holding – is made retroactive.

Soon after Johnson was decided in June 2015, Tom Hoffner asked the 3rd Circuit for permission to file a second 2255. He argued that Johnson was the new rule of constitutional law that should apply to his career offender sentence, which was handed down in 2000. Back then, judges were required by law to follow the Guidelines, which only changed in 2005 when the Supreme Court declared mandatory Guidelines unconstitutional in United States v. Booker.

zax170912Remember Dr. Seuss’s story of a North-Going Zax and a South-Going Zax, who run into each other? Both are trying to get to their desired locations, but neither will move out of the way to let the other one pass. While both stand facing each other, unmoving, the world continues on moving and time passes by.

Tom’s case was something like that. The statute directs courts of appeal to decide applications to file second 2255s within 30 days. Holding that the 30-day language in 28 USC 2244 is merely “advisory,” the 3rd Circuit required over two years to decide whether Tom should be allowed to file a second 2255.

While Tom patiently waited, toe to toe with the government like the two Zaxes, the world did not stand still. First, the Supreme Court decided in Welch v. United States that the Johnson holding should be retroactive. Then, the Supreme decided last March in Beckles v. United States that Johnson would not be extended to people who were career offenders under the advisory Guidelines, leaving open the question of whether Johnson could be extended to people like Tom who had become career offenders under the mandatory Guidelines.

After that, two cases that many thought would decide whether Johnson extended to mandatory Guidelines people the 6th Circuit in United States v. Raybon and the 4th Circuit in United States v. Brown – ended up turning on the decidedly procedural question of whether the 2255s had been filed on time.

rely170912Finally, Tom’s time came last Thursday. The 3rd Circuit handed down 25 pages of careful thought-out analysis on the issue, concluding that while Johnson did not necessarily address Tom’s precise issue, 2244(b) only looks at whether the movant’s claim “relies” on the new rule of constitutional law. Nothing mandates that it be precisely the same point that the movant wants to claim. Thus, if Johnson is a new rule of constitutional law applying to language in the ACCA, and Tom “relies” on that rule in his argument that the same vagueness infirmity afflicts a guideline used to sentence him, that reliance is enough to come within the statute.

The Circuit held that in analyzing 2244 motions, the court needed to lean toward grant.

The context of Section 2244(b)… supports interpreting “relies” permissibly and flexibly… As explained above, Congress has mandated that the “grant or denial of an authorization… shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). This creates an asymmetry in the impact of our gatekeeping decision on a particular case… On one hand, if we erroneously deny authorization, the petitioner “will have no opportunity to appeal or seek rehearing.” On the other hand, “if we err in granting certification, ample opportunity for correcting that error will remain.” The district court will have the opportunity to determine anew whether the petitioner has “shown that the claim satisfies the requirements of this section,” and whether the habeas petition has merit… In turn, we may review the district court’s decision.

It’s not a done deal that Tom will win the 2255 motion he now has permission to file (although you could be forgiven for reading it like the 3rd thinks he will). But the Circuit seems pretty convinced that there’s some merit in his claim.

The significance of this decision, which the 3rd Circuit issued as precedential, is its thoroughness in discussing the 2244 process. In a world where most decisions on second-and-successive 2255s are three-page affairs, and where the statutory limitations on certiorari mean that the Supreme Court will never be able to opine on the matter, this decision is as much guidance as any court has ever given on 2244 practice.

In re Hoffner, Case No. 15-2883 (3rd Circuit, Sept. 7, 2017)

– Thomas L. Root

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4th Circuit Hands Down a ‘Catch-22’ in Brown Case – Update for August 23, 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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CATCH-22

catch22cvr170823Those of us approaching social security age lament that the younger among us (and that’s getting to be just about everyone) no longer recalls Joseph Heller’s classic satirical novel about allied bomber pilots in World War II named Catch-22.

The expression “Catch-22” has since entered the lexicon, referring to a type of unsolvable logic puzzle sometimes called a double bind. According to the novel, people who were crazy were not obligated to fly missions, but anyone who applied to stop flying was showing a rational concern for his safety and was, therefore, sane and had to fly.

It’s not a perfect analogy, but the 4th Circuit came pretty close to defining a “Catch-22” on Monday. Thilo Brown had been sentenced as a career offender back in the bad old days, when the Guidelines were mandatory. He had been enhanced as a “career offender” for prior crimes of violence, among those being a prior state conviction for resisting arrest. After the Supreme Court held in Johnson v. United States that the residual clause of the Armed Career Criminal Act’s definition of a “crime of violence” was unconstitutionally vague, people who had been sentenced under the ACCA because of priors like Thilo’s won substantial sentence relief.

Thilo’s problem was that he wasn’t sentenced under the ACCA, despite the fact that the “career offender” Guidelines used the identical, word-for-word language defining a “crime of violence” that the Johnson court threw out of the ACCA. But he dutifully filed a post-conviction motion under 28 USC 2255 asking that his “career offender” status be vacated because of Johnson.

The government argued vociferously against Thilo, maintaining that the Guidelines are different that the ACCA, and that the same language that is unconstitutional in one is hunky dory in the other. The Supreme Court took up the question last spring in Beckles v. United States, and agreed that because the Guidelines merely recommended to the judge how to sentence offenders, if they were a little too vague, there’s no harm done.

But the Beckles Court was careful to explain that it was only deciding the case in front of it, in which the prisoner had been sentenced after the Guidelines became advisory in 2005. The Supreme Court said it was not considering whether the vague “crime of violence” language might violate a prisoner’s due process rights if used to sentence someone under the mandatory Guidelines.

catch22vis170823So Thilo pursued his 2255 motion, arguing that Johnson is a new right recognized by the Supreme Court which does extend to mandatory Guidelines people like himself. This is an important argument, because Thilo’s 2255 motion fell within the time deadline set out in 28 USC 2255(f)(3) only if it was filed within a year of the right he was asserting being recognized by the Supreme Court, and being made retroactively applicable to cases on collateral review.

Everyone had high hopes for Brown. Countless other lower court cases were stayed awaiting the decision. In fact, a 6th Circuit decision last week cited the pending Brown decision as being the one to resolve the question that went unanswered in Beckles: is the “career offender” residual clause unconstitutional when applied to mandatory Guidelines offenders?

The 4th Circuit has now ruled, and it has dodged the issue slickly. The Circuit, in a 2-1 decision, held that Brown’s 2255 petition was untimely.

The panel said the right under which an inmate proceeds has to be a right recognized by the Supreme Court. This means, the Circuit said, that only the Supreme Court can recognize the right. There is no derivative authority. That is, a lower court cannot recognize a right it may believe is implicit in analogous holdings by the Supreme Court.

vaguenes160516The Supreme Court recognized in Johnson that the residual clause of the Armed Career Criminal Act was unconstitutionally vague (a due process violation, because everyone has a 5th Amendment right to understand what conduct is or is not unlawful). However, this recognition does not mean that the right was recognized for “career offenders” sentenced under Guidelines using the same language.

The 4th noted that the Supreme Court said in Beckles that it was not deciding Johnson’s applicability to mandatory Guidelines career offender cases. This merely proved, according to the Brown court, that the Supremes had definitely not yet recognized the right being asserted by Thilo.

Here’s the Catch-22 with the 4th Circuit’s approach. First, accept that no one who has a career offender sentence under the mandatory Guidelines could have possibly been sentenced after 2004, because it would not have been final when United States v. Booker was issued in January 2005, and would have gotten the benefit of a resentencing.

If a “career offender” Guidelines sentence was final on December 31, 2004, a timely 28 USC 2255 motion had to be filed by December 31, 2005. But as of that time, the right to not be sentenced for vague residual-clause offenses was still more than nine years in the future. No 2255 raising the unconstitutionality of the residual clause had any realistic chance of success until the end of June 2015, when Johnson was handed down.

But if the Brown decision is right, in order for such a 2255 to be successful, it had to be timely under 2255(f)(3), because no other subsection would have made such a filing timely.

Except that it could not possibly be timely under (f)(3). The identical “residual clause” language found to be unconstitutional in Johnson could be tested under the advisory Guidelines, because at the time Johnson was decided, people were still being sentenced as career offenders under the Guidelines. Someone could test the language in a 2255 motion filed within a year of finality. But no one could test whether the language remained constitutional if applied to a mandatory Guidelines sentence, because no timely 2255 could be filed challenging its application to a sentence that necessarily had to have been imposed more than nine years before.

Thus, if the 4th Circuit is right in Brown, to assert a constitutional right just recently defined by the Supreme Court, a mandatory Guidelines prisoner would have to have filed the petition challenging it a decade ago, when the right did not exist and he or she would be laughed out of court.

It’s not quite a Catch-22, but it certainly carries the same level of arbitrariness and frustration.

The dissenting judge argued persuasively that the right recognized by the Supreme Court does not have to be the precise application being sought by the petitioner. Instead, alleging a rational and supportable extension of the newly-recognized to a similar fact situation is enough. Certainly, it is more efficient, and is reasonably calculated to do justice.

And should that not count for something?

United States v. Brown, Case No. 16-7056 (4th Cir., August 21, 2017)

– Thomas L. Root

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6th Circuit Holds Mandatory Guidelines Johnson Issue Not Timely – Update for August 17, 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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SPLITTING HAIRS

split170818Back in medieval times (before 2005), when Guidelines sentencing ranges were mandatory, Jerome Raybon was convicted in federal court of drug distribution. His prior state convictions qualified him under the Guidelines as a “career offender,” thus mandating a much more severe sentence.

One of those prior convictions was the Michigan offense of assault with intent to do great bodily harm. On its face, such an offense sounds like a crime of violence, which is what it had to be to help qualify Jerome as a career offender. But after the Supreme Court handed down Johnson v. United States in 2015, Jerome filed a petition under 28 USC 2255, arguing that the assault conviction was no longer a crime of violence, and his “career offender” status was incorrect.

Johnson151213Of course, Johnson – which held that the part of the “crime of violence” definition that included any offense that carried a significance of injury was unconstitutionally vague – applied to the Armed Career Criminal Act. Two other means by which a prior conviction could be considered a crime of violence were not affected by the decision. Also, the definition of “crime of violence” in Chapter 4B of the Sentencing Guidelines, although identical, was never considered by the Johnson court.

Unsurprisingly, a subsequent case – United States v. Beckles – found its way to the Supreme Court in short order, asking whether Johnson should apply to Guidelines career offender sentences. Last spring, the Supreme Court said it did not, at least not to “career offenders” sentenced under the advisory Guidelines. The Court pointedly said that its decision did not extend to any old sentences under the mandatory Guidelines that might be knocking around.

For their first 16 years of operation, as everyone knows, the Sentencing Guidelines were mandatory, and a judge had to sentence within the specified range except in the rarest of circumstances, when the court could justify a “departure” up or down from the range. Even then, the departure was strictly regulated by the Guidelines.

However, in 2005, the Supreme Court held in United States v. Booker that mandatory sentencing guidelines were unconstitutional. The Court struck the requirement that the Guidelines be followed from the statute, and the Guidelines have been advisory ever since.

So we have split a hair in Johnson, and split that split hair in Beckles. It was inevitable that a case like Jerome’s would arise.

splitB170818The district court said that Jerome’s 2255 motion was untimely, because his argument against the Michigan assault conviction was not that Johnson made it inapplicable, but rather that another case addressing one of the other means of defining a crime as violent – which had been handed down in 2010 – was what disqualified the assault.

Jerome appealed. Earlier this week, the 6th Circuit agreed with the district court, but for a very different reason.

Jerome’s problem, the Court said, was that for his 2255 motion to be timely, it had to be filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 USC 2255(f)(3). But due to the Supreme Court’s repeated hair-splitting, the precise issue – whether Johnson applied to an old mandatory Guidelines sentence – has not been decided. In fact, the Supreme Court explicitly said in Beckles that it was not deciding the question of whether Johnson applied to Jerome’s situation.

violent160620Because of that, Jerome’s petition was untimely, and it had to be dismissed. While you would think that settled the matter, the 6th Circuit decided to address his argument anyway, and quickly concluded that, of course, Michigan’s “assault with intent to do great bodily harm” statute remained a crime of violence under the definition even if Johnson did apply. No surprise there.

Whether Johnson will offer relief to any of the 7% or so of federal inmates serving the old mandatory Guidelines sentences is being litigated in several Circuits. The closest case to decision is probably the 4th Circuit case, United States v. Brown, Case No. 16-7056, argued May 11, 2017.

United States v. Raybon, Case No. 16-2522 (6th Cir., Aug. 14, 2017)

– Thomas L. Root

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Civil Rules Can Limit Habeas Corpus Showing – Update for August 3, 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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WHEN BIGGER IS NOT BETTER

We have been accused from time to time of tending toward prolixity, so we can sympathize with Jorge Martinez. Jorge, serving a life sentence for drug distribution and healthcare fraud, resulting in the death of patients, filed a post-conviction motion pursuant to 28 USC 2255 that was… well, let’s say “substantial.”

fishfowl170803As we have previously described, everyone has a basic constitutional right to habeas corpus, but that does not mean Congress cannot limit its use. And for federal inmates, Congress has done so in 28 USC 2255. The issue – one the 6th Circuit takes up in today’s case – is exactly what a 2255 motion is, a continuation of the criminal case (and thus governed by criminal rules) or a civil action.

Courts traditionally have said that a 2555 motion is neither fish nor fowl, having some characteristics of a criminal action and some of a civil action. This became a debate of more than academic interest to Jorge, because he had to seek relief in the Northern District of Ohio.

Procedures in federal cases are governed by various layers of rules adopted by the Supreme Court and given the force of law by the Rules Enabling Act. Criminal actions are subject to the Federal Rules of Criminal Procedure. Civil proceedings are governed by the Federal Rules of Civil Procedure. Appellate actions are subject to the Federal Rules of Appellate Procedure. Evidence in any of the foregoing is governed by the Federal Rules of Evidence.

Section 2255 proceedings have their own procedural rules, given the clunky name “Rules Governing Section 2255 Proceedings for the United States District Courts”. 

But layered on top of these rules are local rules adopted by district courts and appellate courts nationwide, such as the ones for the Northern District of Ohio. Especially for inmates who lack access to the Internet, learning those rules can be a tall order.

details170803Nevertheless, the devil is in the details. The Northern District of Ohio has a rule limiting the length of memoranda attached to dispositive motions (the kind of motion that, if granted, will decide a case) to 20 pages. On one hand, this make sense, forcing lawyers to be concise and to the point. On the other hand, it’s a little draconian to apply that to an inmate who is not a trained lawyer, who only has one shot to raise every issue he or she has, and who is fighting for his or her liberty, not merely for money or property as in a civil case.

For that reason, the Northern District has been known to use some discretion on enforcing the rule. Still, when Jorge filed a 628-page 2255 motion, the court sent it back, giving him a chance to refile one that complied with the rule. Little wonder there: ten pages over on a 2255 might be forgiven, but Jorge’s filing was 32 times as long as permitted. Bigger is not always better.

bigger170803Jorge refiled a 23-page motion. So far, so good. It was pretty close, except that he attached a 628-page “affidavit” that was nothing but the original filing. The judge, who had not just fallen off the turnip truck, sent that back, too, giving Jorge one more chance.

Jorge did not accept the invitation to try a third time, and the court dismissed the 2255 for noncompliance. Jorge appealed, arguing that the local civil rules should not apply to 2255 motions.

On Tuesday, the 6th Circuit disagreed, holding that the district court correctly applied Local Rule 7.1 on motion length. While noting that “there appears to be no definitive authority on the question of whether § 2255 proceedings are civil or criminal in nature, the overwhelming history of § 2255 indicates that motions filed under that section could be considered civil in nature.”

The Court said a 2255 petition is a “motion” as contemplated by the local rule:

Local Rule 7.1 is not inconsistent with any provision of § 2255… [It] states that memoranda relating to dispositive motions in standard cases must not exceed twenty pages and memoranda relating to all other motions must not exceed fifteen pages in length. The local rules also provide that non-compliance is sanctionable at the judge’s discretion.

The Court observed that Rule 12 of the Rules Governing Section 2255 Proceedings makes clear that the Federal Rules of Civil Procedure apply to 2255 proceedings. And, the Court said, “even if § 2255 proceedings are more criminal in nature, Federal Rule of Criminal Procedure 57 allows district courts to apply local rules as long as the litigant has notice. Martinez clearly had notice in this case.”

draconian170725Jorge – who is serving a life sentence without chance of parole – is left without any chance for a 2255 motion, his one and only genuine shot at habeas corpus. Sure, he was being cute with his second filing, and he should have cleaned up the pleading. Nevertheless, the sanction seems to smack of Draco just a bit.

Martinez v. United States, Case No. 14-4258 (6th Cir., Aug. 1, 2017)

– Thomas L. Root

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A Most Consequential Certiorari Petition – Update for July 25, 2017

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SAVING DAN MCCARTHAN

In the world of habeas corpus, federal defendants quickly are on first-name basis with Title 28, Section 2255, of the United States Code. Soon, a substantial number may as well known the name “Dan McCarthan.”

blackstone170725First, some background: The right of habeas corpus is shorthand for “Habeas corpus ad subjiciendum,” meaning roughly “that you have the person for the purpose of subjecting him/her to examination,” the first sentence of the writ issued by the court.

The great English commentator on the law, Lord William Blackstone, called writ of habeas corpus has been called “the great and efficacious writ in all manner of illegal confinement.” At its essence, the writ of habeas corpus is a court order addressed to a prison official that demands a prisoner be brought before the court and that the custodian present proof of authority to detain him. It allows the court to determine whether the prison authority has lawful authority to detain the prisoner in the conditions in which he is detained. If the custodian is acting beyond his or her authority, then the prisoner must be released.

Some say habeas corpus originated with the Magna Carta’s guarantee that no freeman could lose his liberty or property except by the law of the land (sounding a lot like the 5th Amendment’s guarantee of due process). Others trace it to the Assize of Clarendon, a re-issuance of rights during the reign of Henry II of England about 50 years before the Magna Carta. Lord Blackstone cited the first recorded issuance of a writ of habeas corpus ad subjiciendum in 1305.

Regardless of when it first was enshrined in English law, by the time the United States Constitution was drafted, habeas corpus was assumed to be the law, so much so that the Constitution only guarantees it in the negative, that is, “[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

habeas_corpusThe privilege may not be easily suspended, but Congress and courts have shown that it can be easily regulated. Habeas corpus for federal prisoners is controlled by Sec. 2255 (which permits and regulates post-conviction motions attacking the lawfulness of convictions and sentences) and 28 USC 2241 (habeas corpus for conditions of confinement). For prisoners seeking to get out of prison, 2255 is the only game in town.

Restricting prisoners’ rights to challenge their convictions is a pretty easy issue to demagogue. No one likes prisoners, and Congress has given legislative voice to public disdain for convicts by restricting when and how Section 2255 may be used. A prisoner has only one year from finality of the conviction to challenge it, subject only to strictly limited exceptions. Like dogs, every inmate gets only one bite: filing a second 2255 motion requires prior approval of a court of appeals, which is granted only in the most limited circumstances. Only where new facts that could not have been discovered before and convincingly prove innocence, or a new Supreme Court ruling changing a constitutional rule and made retroactive, can a prisoner file a second 2255 motion.

The holding in Johnson v. United States, where a part of the Armed Career Criminal Act was declared unconstitutionally vague, is the most recent example of a retroactive holding. Such decisions are never declared retroactive in the holding itself: rather, a case is declared to be retroactive in a subsequent decision that addresses specifically the retroactivity of the prior case.

This two-step procedure can be perilous. Sec. 2255 only provides one year from a new Supreme Court case to file any new claims. Often, however, it takes that long or longer to get a retroactivity ruling from the Supreme Court. In Johnson’s case, the holding came with only two months to go. Sometimes, the holding comes after the deadline altogether.

A different but more serious problem comes when changes in the law are not based on the constitution. In 1995, the Supreme Court decided that the lower courts had been misinterpreting 18 USC 924(c) – which punishes using a gun in a crime of violence or drug offense – and locking up many people to whom the statute did not apply. The decision was purely one of statutory interpretation, with no constitutional dimension whatsoever. Under the law, people who had already filed a 2255 motion could not file another one, because the change in the law did not qualify them for permission from a court of appeals for a second 2255.

For that kind of problem, 2255 has a “saving clause” at 28 USC 2255(e), which provides that a prisoner may not use the other form of federal habeas corpus – a petition under 28 USC 2241 –instead of a 2255 “unless it also appears that the remedy by [2255] motion is inadequate or in-effective to test the legality of his detention.”

lifering170725Dan McCarthan Needs a Lifeline: For the past 20 years, courts have let prisoners use 2241 to challenge convictions that suddenly became non-convictions because statutes had been reinterpreted in such a way that the inmates were no longer guilty of a crime. And what could make more sense? If a guy has been locked up for a decade, and he already used up and lost his 2255 nine years before, does that make it fair to keep him in prison another 10 years for something that’s no longer a crime?

Dan McCarthan didn’t think so. Years before, Dan had walked away from a halfway house, a mistake that caught him an escape charge. When Dan was convicted federally of being a felon in possession of a gun, escape charges were deemed to be violent, and that qualified him for a mandatory 15-year sentence under the ACCA. But then, in 2009, the Supreme Court held escape was not a violent crime. Because the decision was based on interpreting the statute, and was not constitutional, it did not entitle Dan to file a second 2255. So he filed a 2241.

While the district court threw out Dan’s 2241, a three-judge panel on the 11th Circuit held he was entitled to use a 2241. But then, the Circuit decided to rehear Dan’s case en banc, and told the parties to brief the question of whether the 2241 could be used in this kind of case.

The government and Dan agreed that the 2241 was appropriate in this kind of case, but the Circuit – by a 7-4 vote last March, with six different opinions totaling more than 150 pages – 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 en banc decision asserted the saving clause in Section 2255(e) 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.

draconian170725Prior to the 11th Circuits’s decision in Dan’s case, only the 10th Circuit took such a draconian view of the saving clause (in a decision written by Judge – now Justice – Neil Gorsuch). But now, the circuit split is 9-2, with thousands of federal inmates in Florida, Georgia and Alabama now shut out for relief.

Fortunately, someone lined Dan up with Kannon Shanmugam, a former Antonin Scalia law clerk who is now a Supreme Court veteran. With 20 oral arguments under his belt, Kannon heads the Supreme Court practice for D.C. law powerhouse Williams & Connolly. It’s like Dan’s flag football team really needed a good quarterback, and Aaron Rodgers showed up. Sure, you can argue that there are several quarterbacks arguably better than Aaron, but he’s in anyone’s Top 5. So is Kannon.

Dan filed a petition for writ of certiorari with the Supreme Court two weeks ago, asking the Court to resolve the circuit split by ruling that the 2255 savings clause was intended to throw a lifeline to someone who never had a reasonable chance because circuit precedent foreclosed his argument. As the Seventh Circuit once explained it, with circuit precedent against a prisoner, “[t]he trial judge, bound by our… cases, would not listen to him; stare decisis would make us unwilling (in all likelihood) to listen to him; and the Supreme Court does not view itself as being in the business of correcting errors.” In those circumstances, the Seventh Circuit reasoned, Section 2255 “can fairly be termed inadequate,” because “it is so configured as to deny a convicted defendant any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense.”

Dan argues eloquently for the Supreme Court to hear the case:

The conflict on the question presented cries out for the Court’s intervention. The arguments on both sides of the conflict are well developed, with the benefit of numerous opinions across nearly every regional circuit over the last two decades. There is little room for the law to develop further. And this case is an apt vehicle for resolving the conflict, because the relevant arguments have been exhaustively presented in six separate opinions from an en banc court whose members embraced the full spectrum of positions on the question. This case satisfies all of the criteria for the Court’s review, and the petition for a writ of certiorari should therefore be granted.

score170725This cert petition is very consequential to thousands of inmates, not just those who have suddenly found their statutes of conviction redefined to make them innocent, but for those who will in the future. If the 11th Circuit opinion spreads, it will – as Dan’s petition puts it – “close[] the door for collateral relief to any person whose conviction or sentence was rendered unlawful by Supreme Court precedent postdating an initial Section 2255 motion.”

The Supreme Court will probably resolve the petition for writ of cert by the end of the year.

McCarthan v. Collins, Case No. 17-85, Petition for Writ of Certiorari (July 12, 2017)

– Thomas L. Root

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Hear the Words of Prudence – Update for June 8, 2017

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JUST THE FACTS, MA’AM

No, Sgt. Joe Friday never really mouthed those precise words, although they succinctly capture the essence of the no-nonsense detective in the long-running series Dragnet.

dragnet170608Sgt. Friday was a man who was careful with the facts, and prudent in what he said. Our President could learn from him. So could today’s defendant, Eduardo Rodriguez.

Eddie pled guilty to conspiring to transport illegal aliens and was sentenced in June 2012. As part of his plea agreement, he agreed to waive his rights to appeal his conviction and sentence as well as his right to seek post-conviction relief.

But waivers are met to be ignored. So in July 2014, Eddie filed a motion for post-conviction relief under 28 USC 2255 complaining that his lawyer had not appealed his conviction and sentence. Sure, 28 USC 2255(f) requires that such motions be filed within a year of the case becoming final, a retroactive change in the law, or discovering new evidence. But Eddie covered that, claiming he did not find out his lawyer failed to file the appeal in July 2012 until October 2013.

The district court denied the 2255 motion as being untimely. On Monday, the 5th Circuit agreed.

A 2255 movant has a year to seek post-conviction relief, running from the latest of four possible dates, one of which is “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” 28 USC 2255(f)(4). For this provision to apply, “a petitioner’s diligence must merely be ‘due’ or ‘reasonable’ under the circumstances.” Diligence can be shown by prompt action by the movant as soon as he is in a position to realize that he should act. In applying 2255(f)(4), the Circuit said, “the important thing is to identify a particular time when… diligence is in order.”

In his appeal, Eddie said that he had specifically instructed his lawyer to perfect an appeal of his sentence, and his lawyer said he would. Eddie said he had exercised diligence in trying to learn whether the appeal had been filed by making “several attempts to reach his counsel to inquire about his appeal,” and sending a letter to the district court requesting certain documents.

diligence170608But the 5th reviewed Eddie’s original 2255 filing in the district court, and noted that Eddie’s story had been a little different when he had first filed. There he said merely that he had “expressed to [his lawyer] his desires to prosecute an appeal,” and that the lawyer replied that “he would come visit to talk about the matter,” which he never did. Back then, Eddie only asserted that he “relied on the fact that he had notified his counsel about his intention to appeal his sentence.” In the 2255 motion, he asked the court to conduct an evidentiary hearing to determine whether he had directed his counsel to appeal.”

The Court of Appeals noted that Eddie had never alleged before the district court that his attorney had agreed to Eddie’s appeal request. Instead, Eddie merely assumed that, “during that period of time… counsel had filed his appeal.” What’s more, Eddie never asserted to the district court that he was diligent in contacting counsel to follow up, just that he had “‘made several attempts to obtain documents’ without specifying from where and from whom.”

Eddie told the district court that it “was not until October of 2013 that petitioner learned about the fact that his Counsel never filed the direct appeal has he instructed him to do so. During that period of time he thought that his counsel had filed his appeal. He tried to obtain these documents but it was… not until July of 2014 that he received the totality of the documents.” The 5th found that only evidence of Eddie “seeking documents” was a single letter he had written to the district court more than a year after the deadline for appealing expired.

prudence160608The appellate court said that even if the facts were as Eddie said they were, he was not diligent. Maybe his lawyer did abandon Eddie, as he said, but “attorney abandonment… does not, by itself, excuse a petitioner from his duty of diligence.” Complete inactivity by a defendant in the face of no communication from his attorney “does not constitute diligence.” Here, the Circuit said, Eddie’s district court allegations show, at most, “only attorney abandonment and not diligence in the face of same.” Eddie’s assumption that his lawyer had filed a notice of appeal, even after he failed to show up for the promised visit with Eddie about the matter, was not diligent. Eddie waited a year and three months after the appeal deadline had passed to write to the district court asking for documents.

The 5th Circuit said, “Diligence under Sec. 2255(f)(4) requires more.”

Eddie was careless and summary in his treatment of the facts in his 2255 motion. By the time he awoke to the particularity of the showing he needed to make, he was on appeal and it was too late to clean up the mess he made.

Rodriguez v. United States, Case No. 15-40357 (5th Circuit, June 5, 2017)

– Thomas L. Root

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The Difference Between a Lawyer and a Rooster – Update for June 7, 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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MY LAWYER IS A M*****F*****

There is an old riddle asking the difference between a lawyer and a rooster. The answer, of course, is that a rooster clucks defiance.

screw170607Defendants often complain that their lawyers screwed them. Seldom is there a case where everyone else complains that defense counsel screwed the defendant’s mother… and means that in the most literal sense.

Johnathan DeLaura had a serious problem, having been charged with multiple child pornography counts after being caught in a “sting” that left him on the losing side of a mountain of evidence. Johnathan’s mother, who undoubtedly believed in her son’s innocence, located lawyer Gary Greenwald and made the fee deal: she paid Gary a $25,000 retainer against future work and he began representing Johnathan.

The “horizontal fee” is an infamous legend in the legal profession, if not in the plush offices of the white-shoe law firms, then certainly in the shabby corridors of sole practitioners who survive on court appointments and the occasional paying client. A “horizontal fee,” of course, is payment for legal services exacted by the lawyer in a horizontal and unclothed position, that is to say, payment in sex instead of in money.

Sometime after Gary began representing Johnathan, the U.S. Attorney’s Office had reason to believe that the lawyer was having a sexual affair with Johnathan’s mother. No one knows for sure whether such an affair occurred (except for Gary and Mom). If their sexual tryst happened at all, it began when Mom hired Gary and ended a few months later, right about the time Johnathan took a plea deal.

aba170607The prosecutor confronted Gary with his suspicions. Gary coyly answered some questions but refused to answer others, leaving the Assistant U.S. Attorney believing that Gary “certainly suggested to us that the information that we had received was, was correct.” The conversation led the prosecutors to believe that Gary had forgiven “significant legal fees” in connection with the relationship. The classic “horizontal fee.”

The AUSA reported his suspicions to the district court, telling the judge he believed there was a potential conflict, that the conflict was personal and sensitive, that Gary denied any conflict, that a hearing on the conflict was necessary, and that Johnathan should have independent counsel to advise him on the conflict.

The judge called the prosecutor and Gary into chambers, and asked Gary about the allegation in what the Court of Appeals called “an eyebrow-raising colloquy.” Gary refused to answer the judge’s questions, and suggested the judge instead deduce the answers from the plot of an underperforming 2000 movie named The Contender. The appalled judge, said: “You won’t deny it. You won’t deny it. You want to invoke a movie, that’s fine. So let’s have the hearing.”

At the hearing, the district court appointed another lawyer to give Johnathan independent advice, and the government explained its concerns. Gary again refused to answer questions about his relationship, if any, with Johnathan’s mother. This put the court in a quandary, because the law requires that – which a conflict of interest charge is leveled – the court first has an “inquiry” obligation, to investigate the facts in order to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all. Only then is there to be a hearing at which the defendant may waive the conflict (if possible) or ask for new counsel.

The district court did what it could, and during the hearing asked Johnathan if he wanted to waive the conflict, assuming for the sake of argument that there even was a conflict. Johnathan said he would waive the conflict, but employed enough logic to knot a pretzel stick:

If a sane person were to listen to this and say the allegation is true, then logically they would know that there obviously is a conflict and they would never accept anything. They would throw this away… [T]o state to me “okay, you have to assume that this is true and then make a decision upon that,” well, logic would, would–you know, it would be illogical to continue if it were true.

The court reluctantly accepted this “waiver” and went forward. Ultimately, Johnathan got a 400-month sentence.

conflictmix170607After reflecting on the reality of what a 35-year sentence meant, Johnathan appealed – now represented by a different lawyer – alleging that Gary had a conflict of interest (and that his deal with the government gained him nothing). Meanwhile, Gary died, meaning that he is likely to be only marginally less forthcoming in any future testimony. Two days ago, the 2nd Circuit – clearly troubled by the whole affair – turned down his appeal, while virtually assuring him of a hearing on any forthcoming 2255 motion.

So, assuming the fact as alleged are right, what might the conflict be? The Circuit accepted the government’s analysis:

(1) because his relationship with Mom ended, Gary might bear a grudge against Johnathan or might want to spend as little time with him as possible;

(2) given the ethical and personal problems with the relationship, Gary might have an interest in rolling over for the prosecution, in order to persuade the government not to report him to the disciplinary committee; or

(3) the fee arrangement may have been based on the relationship, so that when Gary was no longer scoring with Mom, he might just want to end the representation quickly knowing he wasn’t going to be paid anything more.

The appellate panel framed the problem as this: If the waiver is valid, Johnathan has no claim. But if the waiver is invalid – either because the conflict is unwaivable, because it was not knowing and intelligent, or because the district court failed to make the required inquiry – then the Circuit has to consider the underlying conflict claim itself. If the conflict were potential, Johnathan would have to show it somehow prejudiced him. If the conflict were actual, however, he would only have to make the lesser showing of adverse effect.

shark170607The 2nd complained that “this record allows us to answer few of those questions. We do not know whether there was a sexual relationship (or its timing, duration, or terms), whether a conflict arose from it, whether that conflict was so severe as to be unwaivable, or whether DeLaura was harmed by it. An evidentiary hearing would be needed to sort this out. Because the Supreme Court has expressed a preference for resolving ineffectiveness claims on collateral review… we affirm the conviction rather than remand the case to the district court. But in the event DeLaura’s new attorney files a habeas petition, we think an evidentiary hearing may be in order and that DeLaura’s ineffectiveness claim would merit searching evaluation.”

The Circuit’s deferral of the question is unremarkable. The same, however, cannot be said of the facts. We are puzzled that the district court did not call Mom to the stand during the hearing and ask her. Whatever the reason, Mom’s visits to her son must be pretty interesting.

United States v. DeLaura, Case No. 14-1204 (2nd Cir., June 5, 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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A Midsummer Night’s Scheme – Update for May 10, 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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JUNE 22 AIN’T NUTHIN BUT A NUMBER

We take a necessary break from our breathless coverage of current events (Comey fired! Republic in Jeopardy!) to address a substantial question that the readers of our email federal prisoner newsletter have been sending for the past few weeks.

habeas170510First, a little background: Contrary to popular belief, the writ of habeas corpus was not created by the Magna Carta Libertatum, but rather derived from the Assize of Clarendon, a decree of Henry II a hundred years after the Battle of Hastings. Habeas corpus (literally, “you have the body”) is an extraordinary writ through which a person can report an unlawful detention or imprisonment and request that the court order the custodian of the person, usually a prison official, bring the prisoner to court to determine if the detention is lawful. William Blackstone, in his classic Commentaries on the Laws of England (1838) described habeas corpus as “the great and efficacious writ, in all manner of illegal confinement.”

By the time the U.S. Constitution was written in 1789, the notion that everyone enjoyed the right to seek a writ of habeas corpus was so ingrained in society that the Constitution’s framers did not see the need to express it, but rather merely to provide that habeas corpus could be suspended only under limited circumstances.

The fact that the right exists does not mean that Congress cannot control it. For federal prisoners, the law provides two methods of exercise. A prisoner may vindicate his or her right to habeas corpus by filing a motion under 28 USC 2255 challenging the legality of his or her conviction or sentence. A habeas corpus action challenging the conditions of confinement – inedible food, abysmal medical care and the like – is brought through 28 USC 2241. There are many asterisks, exceptions and conditions attached to the election of which statute to use, which we won’t go into here. Suffice it to say, we’re talking about the most popular means of continuing to attack one’s conviction and sentence even after losing on appeal – and that’s 28 USC 2255.

corso170112Likewise, we won’t get into all the reasons that Congress has tried its level best to strangle 28 USC 2255 to within an inch of constitutionality. It has, the latest being the strangely named “Antiterrorism and Effective Death Penalty Act of 1996.” The AEDPA put strict limitations on when a 2255 motion may be filed, and what gyrations a prisoner must endure if he or she wants to file a second one. Of significance to new prisoners is that they have one year from the date their conviction becomes final to file their 2255 motion.

Sometimes there is a change in the law, a Supreme Court holding that some statute or another is unconstitutional. A good example was the Court’s Johnson v. United States decision in 2015, holding that a portion of the Armed Career Criminal Act was unconstitutionally vague. Suddenly, a lot of guys doing serious time for ACCA violations found that they had been convicted unconstitutionally. So what happens to Ira Inmate, who has never filed a 2255 motion but is way beyond his one-year deadline for filing.

The AEDPA made limited provision for situations like Ira’s. If a prisoner comes upon evidence that could not have been reasonably discovered before trial, or if a Supreme Court case recognizes a new right, and the Court makes the decision retroactive to cases on collateral review (that is, habeas corpus), the one-year period runs anew. Cases announcing substantive rules – changes that modify the range of conduct or class of people punished by the criminal law – generally are retroactive. Likewise, watershed rules of criminal procedure, which are procedural rules implicating the fundamental fairness and accuracy of the criminal proceeding, will also have retroactive effect.

The Supreme Court never announces that a decision changing substantive rules or a watershed change in criminal procedural rules is retroactive at the time the decision is rendered. Instead, it waits for a subsequent case directing addressing the retroactivity issue. In the case of Johnson, it required almost 10 months for the Supreme Court to take up the issue of its retroactivity.

falsehope170510As Elvis succinctly put it, “I said all that to say all this…” There are people out there who make a business selling hope to inmates. Hope is a good thing, provided there’s some reasonable basis for it. But we’ve written about the hopemongers before, people who will tell a prisoner anything to get him or her (or the family) to part with money, and sadly enough, we expect we’ll be writing about again.

The latest from the people who brought you “Holloway motions” is an urgent cry that “[t]he Mathis deadline is June 22, 2017 for those of you that believe you have Mathis/Holt/Hinkle/Tanksley claims should not hesitate in getting your free lookup.”

Please look past the run-on sentence to the meat of this breathless assertion. June 22 is the 1-year anniversary (minus one day) of Mathis v. United States. The other decisions – Holt v. United States, United States v. Hinkle, and United States v. Tanksley – are all appellate decisions that applied the procedural instructions of Mathis to decide that one prior state conviction or another no longer qualifies as an ACCA enhancement.

crisis170510Obama advisor Raum Emanuel famously said, “You never let a serious crisis go to waste.” The hopemongers might add to that the suggestion that if there is no serious crisis to latch onto, create one.

The plain facts are these: Mathis is not a substantive change in the law, that is, a case which interpreted any statute to make conduct that was once considered illegal to no longer be illegal. Rather, it was a case about criminal procedure, how to parse statutes to determine whether convictions under them counted as crimes of violence or controlled substance offenses. Every district court that has reached the question has concluded that Mathis is not retroactive. Obviously, the Supreme Court has never considered the question.

As for the other cases the hopemongers have mentioned, Holt, Hinkle and Tanksley, each is a decision of a circuit court of appeals, not the Supreme Court, and thus has no application to the 2255 deadline.

All of this means that neither Mathis nor any of the other mentioned cases has triggered the one-year period for filing a 2255 motion. The clock does not run out on June 22nd, because the clock never started.

Puck won't be busy on Midsummer's Night writing 2255 motions...
Puck won’t be busy on Midsummer’s Night writing 2255 motions…

But June 22nd makes a great “serious crisis” for the hopemongers, and there’s little doubt that they’re making regular runs to the bank, depositing money that inmates and their families will never see again. And the hopemongers will no doubt write some post-conviction schlock for their customers, and that schlock will be dutifully filed. It will then dutifully be bounced by the courts, and become part of the 92% of prisoner filings rejected by the federal courts in this fiscal year.

There are ways, according to each prisoner’s situation, that may enable him or her to raise issue based on an application of Mathis. But the method must be tailored to the inmate’s situation, and in an unfortunately high number of cases, nothing at all may work. To be sure, a cookie-cutter approach based on a phony deadline won’t work for anyone.

A lot of things happened on June 22nd in history. This year, we know for sure it will be the first full day of summer, the day after St. John’s Day. But that’s all. It will not be the expiration of a 1-year 28 USC 2255 deadline for Mathis, because a clock that doesn’t start won’t stop, either. 

– Thomas L. Root

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Pay the Man, Shirley – But It’s Not a Sentence – Update for May 8, 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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OPPORTUNITY KNOCKS…

For the past 20 years, federal law has required that those convicted of crimes where victims suffer tangible harm pay restitution to those hurt by their conduct.

restitution170508While prosecutors and others of that ilk like to fume that drug offenses – where willing buyers purchase commodities that the government has deemed fit to outlaw from willing sellers – are not victimless, those offenses have thus far been exempted from restitution. But for economic crimes – bank fraud, tax evasion, even where executive misconduct causes a company’s stock price to fall – courts slap defendants with staggering restitution liabilities that affect them long after the sentence is served. Often it’s well deserved, such as where a Ponzi operator has fleeced elderly victims out of life savings. But we have seen cases where the “victims” vehemently denied they were due restitution, but it was ordered anyway.

To defendants, a big restitution judgment may seem like a sentence. It sure did to Zack Dyab. Zack pled guilty in 2010 to a couple of white-collar offenses, wire fraud and money laundering, for which he was sentenced to 10 years and ordered to pay $6.4 million in restitution. Like most people in his position, after his conviction, Zack filed a habeas corpus motion pursuant to 28 USC 2255. And like most people, his 2255 motion failed.

Two years later, the government moved to amend Zack’s restitution to reflect that one of his co-conspirators would be jointly and severally liable for a portion of the obligation, and to update the identities and addresses of some of the people entitled to share in the restitution. Somehow no one served Zack with the government’s motion – a common enough problem for federal inmates, who cannot participate in the federal courts’ electronic filing and service system – and the court issued an amended judgment in due course.

carpe170508Zack did receive a copy of the amended judgment. Being a carpe diem kind of guy, he took the opportunity presented by the amended judgment to file another § 2255 motion, this one claiming his due process rights were violated because he received no notice that the amended judgment was being considered. The district court denied the motion, and last week, the 8th Circuit agreed.

The Circuit held that a § 2255 motion was not the right means of challenging the amended judgment, because § 2255 motions can only be used for claims involving release from custody. Because “a dispute about restitution does not involve a claim of a right to be released from custody,” the Court said, “a prisoner cannot challenge the restitution portion of his sentence under § 2255.”

moneylaundering170508Zack also argued he ought to be allowed to challenge his money-laundering conviction all over again, because that conviction is what led to the restitution order, and there was a fresh judgment on file that he should be able to attack. Noting that “not every change to a judgment results in a new sentence or judgment that wipes clean the slate of post-conviction motions previously filed,” the 8th Circuit disagreed:

We think the district court’s order amending Dyab’s judgment did not result in a new sentence or judgment. There was no substantive proceeding that adjudicated Dyab’s guilt or determined the appropriate punishment. The court did not alter the amount of Dyab’s restitution obligation or otherwise change Dyab’s sanction. The court updated the addresses of certain restitution payees… and reflected that one of Dyab’s co-conspirators… was jointly and severally liable for some of the losses. These actions are not sufficient to create a new sentence or judgment that would permit Dyab to file a successive § 2255 motion.

Dyab v. United States, Case No. 16-1296 (8th Cir., May 4, 2017)

– Thomas L. Root

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