Tag Archives: 28 usc 2241

Taking the “Justice” Out of DOJ – One Position at a Time – Update for November 27, 2017

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

Attorney General Jefferson Beauregard Sessions III
     Attorney General Jefferson Beauregard Sessions III in a seriously retouched photo.

Anyone who wonders where Attorney General Jefferson Beauregard Sessions III will take the Dept. of Justice has to look no further than a brief filed last month in McCarthan v. Collins.

Late last July, we wrote about McCarthan, which deals with when and under what terms an inmate may use a 28 USC 2241 motion. Recall that every inmate gets to file one motion under  28 USC 2255, but only one: filing a second 2255 motion requires prior approval of a court of appeals, which is granted only in unusual circumstances.

One such circumstance is a new Supreme Court ruling changing a constitutional rule and made retroactive. The 2015 Johnson decision, that declared part of the Armed Career Criminal Act unconstitutional, is the most recent example of such a case.

But sometimes changes in the law are not based on the constitution, like a 1995 Supreme Court decision holding 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 people to whom the statute did not apply. The decision was purely one of statutory interpretation, with no constitutional dimension at all. Because of that,  people who had already filed a 2255 motion were prohibited from filing another one, because the nonconstitutional change in the law did not qualify them 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 use the other form of federal habeas corpus – a petition under 28 USC 2241 – if it “appears that the remedy by [2255] motion is inadequate or in-effective to test the legality of his detention.”

Some of the people who say this really are...
Some of the people who say this really are…

For the past 20 years, prisoners have been allowed to 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 motion nine years before, does that make it fair to keep him in prison another 10 years for something that’s no longer a crime?

Many years ago, Dan McCarthan walked away from a halfway house, a mistake that caught him an escape charge. At the time Dan was convicted of a felon-in-possession gun charge, all escapes were deemed to be violent, and that got him 15 years 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 not the constitution, it did not entitle Dan to file a second 2255, so he filed a 2241.

The district court threw out Dan’s 2241, but a three-judge panel on the 11th Circuit held he was entitled to seek review using that petition. Then, the Circuit decided to rehear Dan’s case en banc, and told the parties to brief the question of whether the 2241 was even usable in this kind of case.

Meme171127The 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. In other words, you have to raise arguments even when the court has already said the arguments are futile.

Prior to the 11th Circuits’s decision in Dan’s case, only the 10th Circuit took such a draconian view of the saving clause. But now, the circuit split is 9-2, and thousands of federal inmates are shut out of relief.

Dan filed a petition for writ of certiorari with the Supreme Court last summer, 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. He argued that “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… This case satisfies all of the criteria for the Court’s review, and the petition for a writ of certiorari should therefore be granted.”

This is where the plot thickens. For the last 16 years, the Justice Department had taken the same view held by Dan and 9 out of 12 circuits. DOJ even said so in at least 11 separate Supreme Court filings. But that was then. This is now, and now, the AG wants to have it both ways.

DOJ told the Supreme Court that it no longer believed that federal prisoners serving longer prison terms than the law allowed were entitled to challenge their sentences in court, because they could have raised the issue themselves years before (when their chance of prevailing was theoretical at best and located somewhere between slim and none). 

curtain171127That change of position alone is duplicitous, but the next part is downright gutless. Given the fact of a substantial circuit split, you might be forgiven for thinking that DOJ would suggest the Supreme Court should take this case to settle the issue. But instead, Sessions’ department doesn’t want the Supremes to touch it, even though the DOJ brief acknowledges that the legal question is significant and that its new position could condemn inmates to serve out unlawful sentences.

Last week, The New York Times observed that “it is one thing for a new administration to switch sides in a legal dispute. That is merely unusual. It is another to urge the Supreme Court to deny review in a case that would test whether the government’s new position is correct.”

Dan’s petition is scheduled to be considered at the Supreme Court’s conference on Friday, December 1.  It could be decided then or get relisted for one or more subsequent conferences.

New York Times, Serving Extra Years in Prison, and the Courthouse Doors Are Closed (Nov. 20, 2017)

– Thomas L. Root


Monday Morning Odds and Ends… – Update for August 28, 2017

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


Jim and his girlfriend “Sweetie” had a brief fling a few years ago. The allure wore off for Sweetie pretty quickly. Now sick of Jim, she moved a thousand miles away.

persist170828Jim did not take rejection well. He began sending emails, texts and Facebook messages demanding that Sweetie apologize to him for breaking it off.

When she refused, Jim used social media to portray Sweetie as a stripper and prostitute, sending the lies to her new employer and generally spreading the meme to the four corners of the Internet. He told Sweetie and her family he would keep it up until she apologized. Sweetie found it pretty upsetting.

Jim was charged with interstate stalking, which he moved to dismiss on the grounds he had a 1st Amendment right to say whatever he wanted to. Problem is that the law is a bit more complex. It holds that “speech integral to criminal conduct” is not protected by the 1st Amendment.

stalk170828The district court said Jim was committing extortion under 18 USC 875(d), making prosecution of him for interstate stalking permissible despite his asserted 1st Amendment right.

Jim argued that he was not extorting Sweetie, because extortion required that one person threaten to injure the reputation of another with the intent to extort a “thing of value” from that person. Jim said all he wanted was an apology, and, after all, what’s an apology worth, anyway?

Last week, the 8th Circuit upheld his conviction. The Court found that a “thing of value” includes intangibles. The focus, the Court said, is on whether the defendant thinks what is demanded is of value. Here, regardless of how much the apology might really have been worth, it was clearly a “thing of value” to Jim. Thus, he was extorting Sweetie, and his speck thus was integral to a crime.

run170828Meanwhile, a couple hundred miles away from Jim and Sweetie, Rod had struck up an Internet friendship with a 17-year girl in another state. The young girlfriend, whom we’ll simply call “Honeybunch,” lived in an unhappy home environment and was aching to get out of there. Rod sent her money for a bus ticket to come to live with him several states away in Texas (where the romance, he conceded, would have included some “honey” from Honeybunch in the form of consensual and loving sex).

The plan fell apart before Honeybunch could even get as far as the state line. Honeybunch’s family found her missing, and panicked. When they found Rod’s phone number among things Honeybunch had left behind, they called him. Rod counseled the girl by phone to go back home, which she did.

That was not enough for the family, whose panic quickly turned to ire. They convinced the feds to prosecute Rod under the Mann Act, for knowingly transporting someone under 18 in interstate commerce “with intent that the individual engage in… sexual activity for which any person can be charged with a criminal offense.” The age of consent in Honeybunch’s home state was 18, but Rod argued that any sex would have occurred in Texas, where the age of consent was 17. Rod argued the 1st Amendment protected his communications with Honeybunch, because he did not urge her to do anything that would have been a crime where he proposed doing it.

hook170828Last week, the 8th Circuit denied Rod’s 2255 motion, too. Sure, it agreed, the age of consent in Texas is 17 years old. But it found another Texas statute that made it a crime to “employ, authorize, or induce a child younger than 18 years of age to engage in sexual conduct,” including “sexual contact, actual or simulated sexual intercourse.” Rod was right that Texas allowed him to have sex with a 17-year old, but Texas nevertheless made it a crime for him to say or do anything that might convince the 17-year old to have sex with him.

So in Texas, you can have sex with a 17-year old if you just lie there. But if you’re at all interested, you could end up with 10 years in federal prison. Charles Dickens was right: “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass – a idiot’.”

United States v. Hobgood, Case No. 16-3778 (8th Cir., Aug. 22, 2017)

United States v. Goodwin, Case No. 16-1669 (8th Cir., Aug. 25, 2017)


Since the Supreme Court decided in the 2010 Curtis Johnson v. United States case that “force” meant “violent force—that is, force capable of causing physical pain or injury to another person,” circuits have been determining whether force was “violent” by asking whether it was likely to cause pain. Trust the 11th Circuit to upend that logical approach with a 67-page en banc decision holding that everyone is wrong: violent force only needs to be “capable” of causing physical pain. Degree of force no longer matters: only the effect does.

The ruling came last Friday in a reversal of an earlier 3-judge decision that Florida’s felony battery offense is categorically not a violent crime.

violence160110Five dissenting judges point out that Florida felony battery “criminalizes a mere touching that happens to cause great bodily harm… A mere touching is not violent—it does not involve a substantial degree of force. A tap on a jogger’s shoulder that happens to cause the jogger to suffer a concussion is still just a tap.” The dissenters complaint that “the Majority’s decision cannot be reconciled with Curtis Johnson… Johnson explain[s] over the course of several pages that “physical force” refers to a threshold degree of force. But the Majority, reading this lengthy analysis out of Curtis Johnson, creates a new test for “physical force” that disregards degree of force. Although the Supreme Court has cautioned against reading a statement from one of its opinions “in isolation” rather than “alongside” the rest of the opinion, the Majority does exactly that.”

United States v. Vail-Bailon, Case No. 15-1035 (11th Cir., Aug, 25, 2017)



We have written before about the Circuit split on whether a prisoner can use a 28 USC 2241 to challenge his or her guilt when there has been an intervening change in statute. Nine circuits say the saving clause of 28 USC 2255(e) permits it. Two, the 10th and 11th, do not.

A case challenging the 11th Circuit’s ban is awaiting grant of review by the Supreme Court, and some heavyweight legal talent is lining up to urge the issue on the high court. Meanwhile, the 3rd Circuit last week recognized the circuit split while reaffirming its commitment to maintaining 2241 as a safety valve.

violent160620Gary Bruce was involved in a rather ugly robbery/murder years ago in Tennessee. Among other crimes, he was convicted of witness tampering murder, for killing to “prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.” Gary’s jury was not instructed at all about whether it had to find Gary thought the witnesses might communicate with a federal officer. At the time, the law said that “no state of mind need be proved with respect to the circumstance… that the law enforcement officer is an officer or employee of the Federal Government.”

Later, the Supreme Court held that the statute required that the jury find that it was “reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer.” This was a new rule of substantive law not dictated by precedent existing at the time Gary was convicted, that narrowed the scope of the statute.

The Court said it permitted a 2241 when two conditions are satisfied: First, a prisoner must assert a “claim of actual innocence’ on the theory that… an intervening Supreme Court decision” has changed the statutory case law in a way that applies retroactively in cases on collateral review. Second, the prisoner must have had no earlier opportunity to challenge the conviction with a 2255 since the intervening Supreme Court decision issued.

Some of the people who say this really are...
‘Actual innocence’ is a standard all circuits apply to 2241 motions…

Some other circuits allowing 2241s have stricter standards, requiring that prisoners show that circuit precedent foreclosed the issue at the time the 2255 was due. Here, Gary’s brother Bob was locked up in a different circuit that had such a rule. The 3rd noted the unfairness of the disparate treatment, noting that while Congress enacted Sec. 2255 to “alleviate the inefficiencies that attend 2241’s… rules, now those difficulties have returned, though in a new form. And so they will remain, at least until Congress or the Supreme Court speaks on the matter.”

Bruce v. Warden, Case No. 14-4284 (3rd Cir., Aug. 22, 2017)

McCarthan v. Goodwill Industries, Petition for Writ of Certiorari, Case No. 17-85 (Supreme Ct., filed July 17, 2017)

– Thomas L. Root