Tag Archives: 28 usc 2255

“You’re Screwed” Writ Large – Update for January 30, 2018

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


The history of what the law calls “extraordinary writs” is a rich one. Time was, courts of law could only award money damages. Now money’s nice stuff, but sometimes you need more.

equity180130Your neighbor’s tree is about to fall on your house and he won’t do anything about it? Knowing that after your house is crushed one dark and stormy night (with you in it) that your heirs can collect some money does not provide a lot of what insurance companies like to call “peace of mind.” What you need is a court order that your neighbor has to cut it down. Back in the bad old days of segregation, a black family would have had no remedy in a court of law: money damages won’t do when you yearn for liberty and equality.

Because of the mismatch between need and remedy, the English – back in the days of yore – developed courts of equity. Equity courts were the equal of law courts, but for their remedies. These courts originally issued prerogative writs, court orders, with such great names as certiorari, mandamus, quo warranto, audita querela, and, of course, the Great Writ itself, habeas corpus. These remedies, as well as the one most have heard of, injunctive writs (or just injunctions) survive today.

Everyone knows about the federal prisoners’ motion under 28 USC 2255, a statutory right granted to prisoners to stand in the place and stead of the constitutionally-protected writ of habeas corpus. But you cannot hang around a prison law library too long without hearing that a thundering herd of extraordinary writ motions are there, just waiting to be filed besides the old reliable 2255. In fact, there is a law called the All Writs Act, that confers on federal courts the right to gin up just about any remedy the court can imagine, sort of a remedy version of making the punishment fit the crime. Court-order busing, taking control of labor unions, and court-ordered state prison emptying are examples of the All Writs Act in action.

vader180130For federal prisoners, however, Congress intended through 28 USC 2255, as well as the Antiterrorism and Effective Death Penalty Act (a bill that could have been named by Darth Vader himself) to limit prisoner access to traditional extraordinary writs as much as possible. Last week, the 8th Circuit reminded us of how effective the AEDPA has been.

The Circuit slapped further restrictions on the writ of error coram nobis, an old common law writ which may be filed only after the petitioner is out from under his sentence and supervised release to claim he was actually innocent. Keith Baranski got 60 months on a firearms charge. While locked up, he filed a 2255 and lost. After he was released and finally got off paper, he filed a coram nobis petition. It was denied, and Keith appealed.

equitycourt180130The 8th ruled that while 28 USC 2244 only required that a petitioner get Court of Appeals approval for a second-or-successive 2255 motion, the limits set out in 2255(h) applied to any petitions filed after a 2255, even a coram nobis. In other words, if a petitioner previously filed a 2255 motion, a coram nobis petition will be tossed unless it relies on newly discovered evidence that would establish by clear and convincing evidence that no reasonable jury would have convicted; or on a new rule of constitutional law made retroactive…

The Circuit said, “It is widely accepted that custody is the only substantive difference between coram nobis and habeas petitions… Given that coram nobis is an extraordinary remedy available at the far end of a post-conviction continuum only for the “most fundamental” errors, it would make no sense to rule that a petitioner no longer in custody may obtain coram nobis relief with a less rigorous substantive showing than that required by limitations for successive habeas corpus and § 2255 relief.”

United States v. Baranski, Case No. 16-1399 (8th Cir. Jan. 23, 2018)

– Thomas L. Root


Thinking About Stuff That’s Not Interesting – Update for January 17, 2018

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


It’s because we’re human… or maybe because we all have the attention span of a gnat. But everybody’s interested in substance; no one cares about procedure.

tedious180118Substantive law is interesting: does a gun in the closet of a marijuana farmer support an 18 USC 924(c) mandatory 5-year consecutive sentence? If you break into a building housing both a pizza joint and a beauty parlor, and pilfer both stores, is that a single burglary or two for Armed Career Criminal Act cases? The issues are understandable, fact-laden and, frankly, interesting.

But who cares about the niceties of whether a Rule 60(b) motion after denial of a 28 USC 2255 petition is a legitimate claim about the integrity of the post-conviction proceeding or a second-or-successive 2255? About whether an appeal/post-conviction waiver in a plea agreement encompasses a motion for sentence reduction? Talk about counting angels on the head of a pin! This stuff is, as a judge once intoned at us during a less-than-effective cross-examination, is te-ee-ee-dious.

angels170726OK, it’s tedious. But’s also very consequential. Consider the world of post-judgment motions. Most everyone knows that filing a motion under Rule 60(b) of the Federal Rules of Civil Procedure to try to resurrect a 2255 motion is fraught with procedural peril. After the 2005 Supreme Court decision in Gonzalez v. Crosby, a Rule 60(b) motion may well be considered a second-or-successive 2255, unless it is narrowly focused on a defect in the 2255 proceeding itself.

But how about a Rule 59(e) motion? F.R.Civ.P. 59(e) lets the loser file a motion to alter or amend the judgment within 28 days after the judgment. One of the benefits of a timely-filed 59(e) motion is that it stops the clock running on the time to file a notice of appeal. It is almost a no-brainer: file a 59(e), and you can buy a lot of time before the appeal is due.

John Uranga is a Texas state prisoner. States, like the Feds, all have procedures for post-conviction challenges to criminal convictions. John filed his state petition, and was shot down. He appealed through the state court system and lost at every step.

apple160516When that happens, a state prisoner has the right to file a motion in U.S. district court under 28 USC 2254. This sort of gives a state prisoner a second bite of the apple, although the standard for a federal court reversal of a state court denial is pretty high. John was in the U.S. District Court for the Northern District of Texas on his 28 USC 2254 motion, and – just like he had in the state system – the District Court ruled against him. After he lost his 2254 proceeding, he filed a 59(e) motion, arguing that the court should have considered an amendment he had filed to the 2254 motion before ruling against him.

Last week, the 5th Circuit made the business of filing a 59(e) motion a lot riskier. Pointing out that a 59(e) can be a second-or-successive post-conviction motion just as easily as can be a Rule 60(b) motion, the Court held that if it decides the motion is “a timely filed motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), then the deadline for filing a notice of appeal would be tolled until the entry of the order disposing of that motion. However, a purported Rule 59(e) motion that is, in fact, a second or successive Section 2254 application is subject to the restrictions of the Antiterrorism and Effective Death Penalty Act and would not toll the time for filing a notice of appeal.”

John was lucky: the appellate court said his 59(e) motion was legit. But there’s a caution here for inmates filing 2254s and 2255s: a 59(e) motion is not necessarily a time-stopper.

Uranga v. Davis, Case No. 15-10290 (5th Cir., Jan. 12, 2018)

– Thomas L. Root


Counsel Should Be Smart Enough to Know the Court is Wrong – Update for January 8, 2018

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


It has happened often enough before: A Circuit decision was plainly against a sentencing position the defendant wanted to take, and so counsel did not fight the issue. Then, after the defendant’s conviction is final, the law changes. Was counsel ineffective for not raising the issue?

violence151213Jolol Carthorne was sentenced as a Guidelines career offender in part because he had a Virginia prior for assaulting a police officer. Circuit precedent at the time held the crime to be a crime of violence, and his lawyer did not fight it, despite the fact that Virginia law held that the slightest touching was enough for conviction.

On appeal, Jolol argued that the assault should not count for career offender status. The problem, of course, was that Jolol did not raise the issue at sentencing, so he could only win the issue if the district court committed plain error. The Circuit agreed that his assault on the cop was not a crime of violence, but said that because its prior decisions (all of which had since discredited by Johnson and Mathis and other Supreme Court cases) were binding on the district court when Jolol was sentenced, the sentencing error was not FRCrimP 52(b) “plain error.” Jolol had noting coming.

assault180108Jolol then filed a 2255 motion complaining that his lawyer should have argued that a Virginia conviction for assaulting a cop was no longer a crime of violence. His lawyer admitted he was not even aware of the analysis required by the recent Supreme Court cases application offenses, such as Johnson v. United States, Mathis v. United States, and  Descamps v. United States, for purposes of the career offender enhancement. But the district court said that since there was no plain error in sentencing Jolol as a career offender, there was no ineffective assistance of counsel standard in not raising it.

On the Thursday before Christmas, the 4th Circuit ruled for Jolol. It said that the plain error standard and ineffective assistance of counsel are not the same thing. “The ineffective assistance inquiry focuses on a factor that is not considered in a plain error analysis, namely, the objective reasonableness of counsel’s performance. In addition, plain error review requires that there be settled precedent before a defendant may be granted relief, while the ineffective assistance standard may require that counsel raise material issues even in the absence of decisive precedent… Claims of ineffective assistance are evaluated in light of the available authority at the time of counsel’s allegedly deficient performance. But the plain error inquiry applies precedential authority existing at the time of appellate review.”

dumblawyer180108Defense counsel must demonstrate a basic level of competence regarding the proper legal analysis governing each stage of a case. Therefore, he or she may be constitutionally required to object when there is relevant authority strongly suggesting that a sentencing enhancement is not proper. The Circuit said that was the case here, where newer cases made clear that Virginia assault and battery did not categorically present serious risks of physical injury. Defense counsel should have known to make the argument, even though the district court probably would have rejected it because of circuit precedent.

United States v. Carthorne, Case No. 16-5613 (4th Cir., Dec. 21, 2017)

– Thomas L. Root


Clueless Defense Counsel Gets Defendant a Hearing – Update for September 29, 2017

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


yacht170928We would give writing this blog and soak up tropical rays aboard our 300-foot long yacht if we had a nickel for every time a defendant has told us that his attorney didn’t listen to what had really happened. Occasionally, an opinion comes along to remind us that this is often the case.

Jim Griffith was a science guy. Unfortunately for him, he used his chemistry knowhow to manufacture methamphetamine from pseudoephedrine. There are a lot of things you probably do not need to know about meth homebrew, but one thing you ought to know: the amount of meth you end up with will never weigh more than the pseudoephedrine you start with. In fact, even high-yield processes yield a lot less, something like 3 units of meth for every 4 units of “suzy.”

science170928Jim’s lawyer was no science guy. That was too bad. As every student of the drug war knows, Section 2D1.1 of the Sentencing Guidelines is driven by drug weight. The more a defendant’s drugs weighed, the higher the sentence.

At Jim’s trial, a forensic chemist explained that all of the liquids the cops seized when Jim’s lab was raided either contained meth or pseudoephedrine. All of the various liquids containing meth was 150.2 grams, and the combined weight of liquids containing the pseudoephedrine was 124.9 grams. The jury found Jim responsible for 150.2 grams of meth.

During the trial, Jim repeatedly explained to his lawyer that no one was looking at the meth issue correctly. He said most of the liquids counted against him were mostly “toxic waste materials” that were “unusable.” He complained he started with only 2.4 grams of pseudoephedrine and said that “it is impossible to turn 2.4 grams of pseudoephedrine into more than 2.4 grams of methamphetamine.” He told counsel “on numerous occasions that the liquids seized by the police were unusable in their current form and were mostly nothing more than the waste materials from the one multi-step process that I was conducting to make a small amount of methamphetamine for my own personal use.”

His lawyer didn’t get it. He thoughstupidoil170928t that “unusable” liquids were just meth mixtures too weak to get users high. Something like ditch weed is to pot. He told Jim it didn’t matter, because all of the weight of the liquid mixtures had to be included in the sentence calculation.

Jim got 20 years.

He then filed a post-conviction motion under 28 USC 2255, complaining that his attorney was ineffective for failing to conduct an adequate investigation, to hire an expert witness to testify as to the amount of usable methamphetamine that could be produced from the liquids; to object to jury instructions addressing whether he manufactured a “mixture or substance” containing methamphetamine; and to challenge the jury instructions and presentence report. Jim fully explained the three-step process he used to manufacture methamphetamine, and that starting with 2.4 grams of pseudoephedrine, it is impossible to end up with more than 2.4 grams of meth. He asserted that he repeatedly told counsel those facts “from the very beginning,” but counsel failed to argue that the liquids were not a usable “mixture or substance.”

lab170928Jim’s lawyer admitted that he did not know what Jim had meant by “usable.” As to whether the substances amounted to “mixtures,” he explained that, after he had talked “with both probation and the Government on that issue,” he concluded that the substances were “mixtures” so he was “satisfied that the calculations were correct.”

The district court concluded Jim was not entitled to a hearing on his 2255 motion. But earlier this week, the 11th Circuit agreed with Jim, and ordered that the district court give him the evidentiary hearing he sought. The Circuit pointed out that precedent clearly held that waste product, even if trace amounts of the drug were present, “which is unusable and not ready for retail or wholesale distribution” should not be counted in the weight of the drugs attributed to a defendant. The Circuit said that “if a petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim… A petitioner need only allege — not prove — reasonably specific, non-conclusory facts that, if true, would entitle him to relief. If the allegations are not affirmatively contradicted by the record and the claims are not patently frivolous, the district court is required to hold an evidentiary hearing.”

atty170928The Circuit observed that If Jim “proves the factual allegations he has made, he will have shown that counsel’s failure to render reasonably effective assistance not only resulted in an erroneously higher guidelines range but it also caused the sentencing court to apply an inapplicable statutory mandatory minimum for Count 1. There is nothing in the record to indicate that the combined force of those two errors did not affect his sentence. To the contrary, the fact that the district court sentenced Griffith to the bottom of the guidelines range on the grouped counts, even though the government argued for a sentence above the guidelines range, is evidence of a reasonable probability of a different result.”

United States v. Griffith, Case No. 15-11877 (11th Cir., Sept. 26, 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