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Instructive § 2255 Procedural Decision from the 7th – Update for August 24, 2023

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

WAKE UP AND SMELL THE COFFEE

coffee230824I always start my day with a hot cup of Death Wish coffee. The caffeine jolt is sufficient to enable me to write about consequential but deadly dull topics, topics such as the “relation back” doctrine as applied to 28 USC § 2255 motions.

I’ll wait while you pour another cup. Or two. This procedural topic is as dry as unbuttered toast, but it’s important to some folks.

“Some folks” includes Freddie Coleman. A decade ago, Fred was sentenced to life in federal prison for conspiring to distribute crack cocaine. The district judge based the sentence on 21 USC § 841(b)(1)(A), which (at the time) mandated a life sentence for a defendant with two or more prior drug distribution felonies. (The statute changed as a result of the First Step Act, but that change was not retroactive).

After losing his appeal, Freddie filed a pro se motion under 28 USC § 2255 to vacate his sentence, arguing that his attorney had provided ineffective assistance by not advising him early on that the government had filed a notice that he should get an enhanced sentence – in this case life in prison –  because of some prior state drug distribution felonies.  Such notices are filed pursuant to 21 USC § 851 and are generally known as “851 notices.”

Later, after the § 2255(f)5 deadline for filing passed – which usually is the cutoff for specifying the issues on which a § 2255 movant intends to proceed  – Freddie tried to amend his pleading expanding on his allegations and claiming for the first time that his lawyer was also ineffective by failing to object to the § 851 notice on the grounds that under the categorical approach adopted in Taylor v. United States, Freddie’s prior Illinois cocaine convictions did not qualify as prior felony drug offenses given that Illinois defined “cocaine” more broadly than federal law.

lawyermistake170227The district court ruled against Fred’s claim that his lawyer never told him about the potential life sentence. On top of that,  the district court denied Freddie’s motion to amend, finding that the amendment did not “relate back” to his initial pleading as required by Federal Rule of Civil Procedure 15(c) because “the claims rested on distinct types of attorney misfeasance and were supported by different facts.”

Last week, the 7th Circuit reversed, vacating Fred’s life sentence.

Everyone knows about statutes of limitations, laws that require people to file claims within a certain period of time or lose them forever.  The same is true of adding new claims to an existing action: those new claims have to be raised within the limitations period or they are barred.

Rule 15(c) provides a limited exception to the limitations bar against amended claims. The subsection allows that “amendments relate back to the date of the original pleading when the claim asserted in the amended plea ‘arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.'”  Fred argued that his claim that his attorney was ineffective not just in one way but in two where the § 851 notice was concerned was allowable because it all related back to the same transaction.

The Circuit agreed:

Even where an amendment invokes a legal theory not suggested by the original complaint and relies on facts not originally asserted,” the 7th said, “relation back is in order so long as the original and amended petitions state claims that are tied to a common core of operative facts… Even ‘significant’ changes to a complaint… can relate back so long as the defendant had fair notice of the substance of the new allegations from the outset.

Construing Fred’s original pro se § 2255 petition liberally, the Circuit ruled, “as we must… we conclude that the government was reasonably on notice of the claims contained within Coleman’s amended petition. Those claims are substantively similar in time and type to those asserted in his original motion: his attorney’s failure to provide legal advice as to the contents and impact of the § 851 notice.”

lawyerjoke180807Both of Fred’s claims – that his lawyer failed to advise him of the risks of a life sentence because of the § 851 notice and his lawyer’s failure to research whether the § 851 notice was right – challenged his attorney’s conduct as to the § 851 notice. But because the claims relied on different facts, the district court found, the amendment did not relate back. The appellate court thought this was “too crabbed a view” of Fred’s claims, “particularly given his pro se status at the time.”

Just because an amended claim “may involve some different facts than those originally alleged,” the Circuit held, “does not necessarily mean that that claim is not tied to the original claim via a common core of operative facts… Coleman’s success on either of his theories would require the district court to inquire into his attorney’s treatment of the § 851 notice and the adequacy of advice he provided to Coleman as to the impact the notice may have had on the case. This commonality is enough to unite the claims.” And because the government had gotten the district court to rule that Fred’s § 2255 motion meant he had waived the attorney-client privilege as to anything to do with the § 851 notice and the potential life sentence,” the government had the ability to “uncover the facts underlying Coleman’s amended claims.”

“Accordingly, the 7th said, “on balance, any prejudice the government may suffer by allowing the amended complaint to relate back to the original filing is outweighed by the preference expressed in the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes on their merits.”

needcoffee230824After all of this dry resolution of Rule 15(c)’s “relation back” application to Fred’s case, the appellate court found that Fred’s attorney seemed to have dropped the ball by not arguing that the overbroad Illinois statute counted as a prior “felony drug offense” that would enhance his minimum sentence. “It would have been objectively unreasonable for Coleman’s defense counsel to have not even considered a categorical challenge to the government’s reliance on prior Illinois cocaine convictions to enhance Coleman’s sentence,” the Circuit said. “Of course, if counsel did consider the argument but had credible strategic reasons for not raising it, that would be a different question.  But because the claim alleged in Coleman’s amended § 2255 motion, if proven, would entitle him to relief, we find that an evidentiary hearing on this issue is necessary. “

Time for another cup of coffee…

Coleman v. United States, Case No. 22-1678, 2023 U.S. App. LEXIS 21201 (7th Cir. Aug. 15, 2023)

Taylor v. United States, 495 U.S. 575 (1990)

– Thomas L. Root

Late is Still Late, But Early Is Not, 4th Circuit Says – Update for May 25, 2023

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

2255 THAT WAS TOO EARLY IS NOT TOO LATE, 4TH CIRCUIT SAYS

hobbsact200218Andra Green was convicted of a series of Hobbs Act robberies, attempted robberies and conspiracies, along with several 18 USC § 924(c) offenses for using a gun during a crime of violence. Such § 924(c) offenses come with mandatory consecutive sentences and are thus beloved by prosecutors.

The reason for prosecutorial affection is illustrated in Andra’s case. Because someone died during one of the Hobbs Act robberies – a violation of 18 USC § 924(j) – Andra was sentenced to life in prison.

But a few years after Andra’s conviction, the Supreme Court decided Johnson v. United States in 2015. Johnson held that the residual clause of the definition of “crime of violence” – the part that said that a crime was violent if it carried a substantial likelihood that physical violence would result – was so vague as to be unconstitutional. Andra connected the dots – like a lot of prisoners did at the time – and figured that if Johnson invalidated the crime-of-violence residual clause for the Armed Career Criminal Act, the similarly-worded residual clause in 18 USC § 924(c) must be equally unconstitutional.

Andra filed a 28 USC § 2255 motion to vacate his § 924(c) and § 924(j) convictions based on his notion that Johnson should logically extend to § 924(c) crimes of violence. Such a § 2255 motion must be filed within strict time limits, such as within a year of the underlying conviction becoming final or within a year of a new constitutional holding that invalidates the conviction. (You can read the limitations in 28 USC § 2255(f)).

Andra was wrong: Johnson did not affect § 924(c) at all. The government argued that Andra’s petition was hopelessly late because it could not rely on Johnson, but instead had to be filed within a year of conviction (and it was four years late for that).

canary230525But Andra was prescient. Johnson may have had nothing to do with § 924(c) offenses directly, but it was the canary in the mine: the Supreme Court over the next few years would extend Johnson’s logic to 18 USC § 16(b) in Sessions v. Dimaya and then to § 924(c) in United States v. Davis. Andra’s petition was held in abeyance by the District Court and later the Fourth Circuit as all of this unfolded. Four years after Johnson, Davis held that the residual clause in § 924(c)’s definition was unconstitutionally vague as well.

Clearly, Andra’s § 2255 motion was untimely when he filed, because Johnson was not a constitutional ruling that would restart Andra’s § 2255 clock. That, as the 4th Circuit put it, made “the key question… whether Davis renders Green’s Johnson-based motion timely” after the fact.

Last week, the 4th said that being early ended up making Andra on time. For starters, it said, “[t]he Davis Court extended the holding of Johnson” to invalidate the “analogous” residual clause in § 924(c). Indeed, in concluding that § 924(c)’s residual clause is unconstitutionally vague, the Supreme Court noted that the clause “bear[s] more than a passing resemblance” to the ACCA residual clause it had struck down in Johnson. Davis thus confirmed what Andra’s motion asserted: that the vagueness analysis in Johnson also called into question the constitutionality of § 924(c)’s residual clause.

early230525The Circuit said the text of § 2255(f)(3) “is silent on how to address this particular scenario, where a petitioner filed a § 2255 motion within a year of a Supreme Court decision recognizing a closely analogous right, and the Supreme Court then recognized the specific right at issue during the pendency of the § 2255 proceedings.” The purpose of the statute of limitations supports extending the limitations period here, the 4th held, because the goal of the limitations in § 2255(f) is to “curb the abuse of the statutory writ of habeas corpus… including undue delays. A petitioner certainly does not contribute to undue delays by filing a § 2255 motion too early. And a petitioner does not abuse the writ by raising an argument, based on very persuasive but non-controlling Supreme Court precedent that the Supreme Court then endorses in a controlling decision.”

United States v. Green, Case No. 16-7168, 2023 U.S.App. LEXIS 11961 (4th Cir., May 16, 2023)

– Thomas L. Root

Did DOJ Sandbag McClinton Cert Petition? – Update for February 21, 2023

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

A COUPLE OF SCOTUS RELISTS COME UP TODAY

relist230221Last week, I reported that the Supreme Court would again take up McClinton v. United States – a case on using acquitted conduct at sentencing – at last Friday’s conference. We won’t know the conference’s outcome until today at 9:30 am EST, but last week, SCOTUSblog.com had an interesting spin on the repeated McClinton relistings.

John Elwood, one of Dayonta McClinton’s lawyers and a regular SCOTUSblog contributor, wrote that McClinton and four other cases raising the same issue “are just sitting there on the court’s docket… [A]s near as we can tell, the court appears to be holding those cases to see whether the US Sentencing Commission acts on a pending proposal to place restrictions on federal courts’ consideration of acquitted conduct at sentencing.”

How come? It seems the Solicitor General wrote to the Court in January, alerting it to the Commission’s acquitted conduct proposal and implying that the Guidelines change would solve the problem, making the grant of McClinton’s constitutional challenge to acquitted conduct superfluous.

inaction230221Dayonta McClinton has argued that the USSC proposal is “woefully inadequate to resolve the issue, but it still may explain the court’s inaction,” Elwood wrote. “Things may become clearer down the road.”

Another new relist, Davis v. United States, raises a fascinating 28 USC § 2255 question: Quartavious Davis got 159 years for a string of armed Hobbs Act robberies. His two co-defendants signed plea deals and got about a tenth of that time. Quart argues his attorney was ineffective by not negotiating the same kind of plea agreement with the government. His district court denied the post-conviction petition, holding that Quart could not prove that he would have gotten a plea deal if his lawyer had advocated for one.

Quart contends it should be enough to show that similarly-situated co-defendants got plea deals, which – he argues – suggests there is no reason the government would not have given him the same benefit. The 11th Circuit disagreed, holding that he could not show prejudice absent making some showing that the government had offered him a plea deal.

catch22-230221The petition raises the Catch-22 that informs a lot of § 2255 post-conviction arguments. Under the case that shaped modern federal habeas corpus claims directed at the constitutionality of federal convictions and sentences – Strickland v. Washington – in order to make a prima facie showing that a movant is entitled to a hearing, the prisoner has to show his or her lawyer goofed, and that but for the goof, there is a reasonable probability that the goof affected the outcome.

Here, Quart has argued that probability favors his claim that the government would have made a plea offer: after all, his two co-defendants – whose culpability was little different than his own – got plea deals. Unsurprising, inasmuch as 94% of federal prosecutions end in plea deals. But the government argues that he could not prove that the government would have made an offer, so he should be denied the very hearing that he needs to prove the government would have made an offer.

Catch-22. To be entitled to a hearing that could prove an element of his claim, the movant must prove the element.

We’ll see whether the Supreme Court is interested in a case that could sharpen the definition of “reasonable probability” as used in Strickland.

McClinton v. United States, Case No. 21-1557 (certiorari filed March 15, 2022)

Davis v. United States, Case No. 22-5364 (certiorari filed August 8, 2022)

Strickland v. Washington, 466 U.S. 668 (1984)

SCOTUSblog.com, Plea bargaining and a high-profile separation-of-powers case (February 15, 2023)

JDSupra, Sentencing Guidelines Amendment Would Preclude Acquitted Conduct from Being Used at Sentencing (January 30, 2023)

– Thomas L. Root

2255 Win Might Be A Pyrrhic Victory – Update for February 2, 2023

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WINNING A 2255 IS ONLY HALF OF IT

It’s not easy to win a 28 USC § 2255 motion. And if you do win, you may still have nothing coming.

pyrrhic161230Jose Peña found that out. About 13 years ago, he was convicted of three counts of murders for hire (18 USC § 1958) and two counts of using a gun to commit the two crimes of violence (18 USC § 924(c)). Joe was sentenced to five concurrent life sentences. He lost his appeal.

In 2019, the Supreme Court held in United States v. Davis that an offense could qualify as a predicate “crime of violence” for purposes of § 924(c) only if it was a felony that “had as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The district court then granted Jose’s § 2255 motion, throwing out the two § 924 convictions.

But the district court refused to resentence Jose. The life sentences for his three 18 USC § 1958 murder-for-hire counts, the Court said, were not affected.  So before the § 2255 Jose was serving life.  After the § 2255, he was still serving life.

hammer160509On appeal, Jose argued that when a conviction on one or more charges is overturned and the case remanded for resentencing, the “constellation of offenses of conviction has been changed and the factual mosaic related to those offenses that the district court must consult to determine the appropriate sentence is likely altered.” In a December ruling amended last week, the 2nd Circuit disagreed.

“Section 2255’s plain text,” the Circuit said, vests a district court “with the discretion to determine first the nature of the relief that may appear appropriate.” Extending the automatic resentencing rule from the direct appeal context to grant of a § 2255 motion “would be in tension with the narrow scope of Section 2255,” the Circuit said. “At least in the context of a ‘truly interdependent sentence’ such as where a mandatory consecutive sentence affects the applicable offense level under the guidelines, the language of § 2255 provides sufficient statutory authority for a district court to exercise its jurisdiction to resentence defendants ‘as may appear appropriate.'”

United States v. Peña, 55 F.4th 367 (2d Cir. 2022) (amended January 27, 2023)

– Thomas L. Root

The Short Rocket – Update for January 27, 2023

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rocket190620We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, the short rocket – decisions from around the federal circuits…

SOME CASE SHORTS

Timing is Everything: In 2015, Benny Hall pled guilty to conspiracy to commit Hobbs Act robbery and using a gun in a crime of violence, (an 18 U.S.C. § 924(c) offense). After the Supreme Court decided in United States v. Davis that conspiracy to commit a crime of violence was not itself a crime of violence that supported a § 924(c) conviction for using a gun in a crime of violence, Benny filed a 28 U.S.C. §2255 post-conviction motion asking that the § 924(c) be thrown out.

corso170112The government convinced the district court that Benny’s § 924(c) conviction didn’t depend only on the conspiracy, but also on his admissions in open court that established that he had actually attempted to commit the robbery.

‘Gotcha!’ the government cried.

‘Not so fast!’ the 2nd Circuit replied last week. Last summer, the  Supreme Court ruled in United States v. Taylor that an attempted Hobbs Act robbery is not a crime of violence. The Circuit threw out § 924(c) conviction and the mandatory 10-year add-on sentence it represented.

Hall v. United States, Case No 17-1513, 2023 U.S.App. LEXIS 1256 (2d Cir., January 19, 2023)
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11th Holds Drug Conspiracy Can’t Lead to Guidelines ‘Career Offender’: Brandon Dupree was convicted of a 21 U.S.C. § 846 drug conspiracy, and was hammered at sentencing as a Guidelines “career offender” (which dramatically increased the advisory sentencing range). An 11th Circuit panel rejected Brandon’s argument that an inchoate offense (that is, a mere plan to commit a crime) does not qualify as a “controlled substance offense” for purposes of the Guidelines ‘career offender’ enhancement.

brandon230127Last week, the full Circuit sitting en banc said, ‘Let’s go, Brandon,’ and reversed his ‘career offender’ sentence. The 11th ruled that “application of the enhancement turns on whether the ‘instant offense of conviction’ is ‘a controlled substance offense’ [under USSG] 4B1.1(a)… The plain text of 4B1.2(b) unambiguously excludes inchoate crimes. Dupree must be resentenced without application of the career offender enhancement.”

United States v. Dupree, Case No 19-13776, 2023 U.S.App. LEXIS 1183 (11th Cir., January 18, 2023)
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Channeling Your Inner Habeas: People are always asking why they can’t point out in their 18 U.S.C. § 3582(c)(1)(A) compassionate release motions that their sentences were wrongly calculated, that their lawyers were ineffective imbeciles, that something was very wrong with how they were convicted.

reallawyer170216Mike Escajeda was convicted of selling drugs and carrying a gun. After losing his direct appeal, Mike filed a compassionate release motion, arguing that the “extraordinary and compelling reasons” required by an 18 U.S.C. § 3582(c)(1)(A) compassionate release motion were that (1) his sentence exceeded the statutory maximum and (2) he received ineffective assistance of counsel. He even admitted in his motion that he had filed for compassionate release because he figured that he could not win relief under § 2255.

Last week, the 5th Circuit ruled that the habeas-channeling rule prevented Mike from raising 2255-type issues in a compassionate release motion. The Circuit said, “Congress provided specific avenues for post-conviction relief that permit prisoners to challenge the legality of their confinement in federal court… The Supreme Court has repeatedly held that by codifying these specific provisions, Congress required prisoners to bring their legality-of-custody challenges under [28 USC 2241, 2244, 2254, and 2255], and prohibited prisoners from bringing such claims under other, more-general statutes like 42 U.S.C. § 1983.

[A] prisoner cannot use § 3582(c) to challenge the legality or the duration of his sentence,” the 5th held. “Such arguments can, and hence must, be raised under [the habeas statutes]… Because Escajeda’s claims would have been cognizable under § 2255, they are not cognizable under § 3582(c).”

United States v. Escajeda, Case No 21-50870, 2023 U.S.App. LEXIS 1041 (5th Cir., January 17, 2023)
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DOJ SORNA Rule Blocked: The U.S. District Court for Central District of California last week issued a preliminary injunction blocking the Dept of Justice’s new Sex Offender Registration and Notification Act rule because it violated due process and the 1st Amendment.

injunction230127The rule requires people who had been convicted of a sex crime to register as sex offenders in their state, even if the sex crime convictions have been expunged and the people are not allowed by the state to register. Because plaintiff John Doe could not register, the DOJ’s rule said that he could be prosecuted at any time, and he would have been forced to prove that registration was impossible — “an affirmative defense,” Doe’s lawyer said, “that turns the presumption of innocence on its head.

The court ruled that it was likely an unconstitutional violation of due process to require anyone to affirmatively prove his innocence when he had never been convicted.

Preliminary injunction, ECF 55, Doe v. DOJ, Case No 5:22-cv-855 (CD Cal., Jan 13, 2023)

Reason, A Federal Judge Says the DOJ’s Sex Offender Registration Rules Violate Due Process by Requiring the Impossible (January 19, 2023)

– Thomas L. Root

That’s Amaury! – 6th Says Court Can’t Choose to Believe One Side’s § 2255 Facts Without Hearing – Update for January 13, 2023

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6TH SAYS CLASHING § 2255 AFFIDAVITS REQUIRE A HEARING

When a prisoner files a 28 USC § 2255 post-conviction motion claiming his conviction or sentence was marred by poor lawyering, district courts often manage to find all manner of ways to believe the government’s version over the inmate’s.  Last week, the 6th Circuit offered a rare reminder that this isn’t how it is supposed to work.

facts161228The Assistant U.S. Attorney prosecuting Amaury Villa’s case emailed Amaury’s counsel in January 2016 with an offer to enter into a cooperation agreement. Amaury’s lawyer says he told Amaury about the offer the day it was made. Amaury says that he learned about that offer only years later – after his conviction was final – when he obtained the relevant portion of his lawyer’s case file.

As soon as he got the file, Amaury amended his pending 28 USC § 2255 habeas corpus motion with his own affidavit, claiming his lawyer was ineffective for not disclosing the offer at the time. Not to be outdone, the government filed an affidavit from Amaury’s former lawyer, claiming he had told his client right away about the proposed deal.

justthefacts220810The district court summarily adopted the government’s view of the facts and denied Amaury’s motion to amend as untimely. Last week, the 6th Circuit reversed and ordered an evidentiary hearing.

“When a defendant presents an affidavit concerning a factual narrative of the events that is neither contradicted by the record nor inherently incredible and the government offers nothing more than contrary representations to contradict it,” the Circuit said, “the defendant is entitled to an evidentiary hearing.”

In this case, the 6th observed, the record contained conflicting affidavits regarding whether Amaury knew of the government’s offer. Thus, the record before the district court did not “conclusively show” that Amaury was not entitled to relief.

The government met with Amaury in 2016, a meeting his lawyer did not attend because the attorney’s father had passed away the night before. “Although an interpreter was not present at the meeting and (according to Villa) his English was ‘not very good,’” the Circuit said, the AUSA told Amaury that the government wanted him to testify against another defendant (for which Amaury presumably would have gotten credit in the form of a better sentence). The AUSA did not mention a cooperation agreement as such, and the meeting was a short one. Amaury later pled guilty without a plea agreement.

confused230113On appeal, the government argued that based on the AUSA’s comments in the short meeting, Amaury should have been aware there was a cooperation agreement on the table. The Circuit rejected that argument: “During that meeting… the AUSA mentioned neither the cooperation agreement nor anything else about what Villa might receive in return for his testimony. Thus, to discover the AUSA’s earlier offer to Villa’s attorney, Villa himself, in effect, would have needed to commence bargaining with the AUSA — by asking what he might have received in exchange for his testimony… That is too much to ask of an uncounseled defendant conversing in his second language with a federal prosecutor.”

Villa v. United States, Case No. 22-5437, 2023 U.S.App. LEXIS 12 (6th Cir., January 3, 2023)

– Thomas L. Root

Supremes Hear Saving Clause Argument Today – Update for November 1, 2022

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SUPREME COURT TO HEAR 2255 SAVING CLAUSE ARGUMENT

Today, the Supreme Court will hear oral argument on the reach of 28 USC § 2255(e), the so-called saving clause.

In Jones v. Hendrix, the high court will consider whether a prisoner may use a 28 USC § 2241 habeas corpus petition to make a Rehaif claim – that he did not know he was subject to the proscription on possessing a gun or ammo – where he could have made the claim in a § 2255 motion years ago.

At least two circuits hold that where the issues could have been raised in the § 2255 motion – even though raising it would have been futile because Circuit precedent was totally against the argument – the saving clause will not let the prisoner file a § 2241 petition.

one-tripcar221101SCOTUSBlog said last week, “one suspects that the conservatives who joined the Rehaif majority… may nonetheless be open to concluding that prisoners like Jones cannot reap the benefit of their ruling. With rare exceptions, the court’s conservative majority has exalted finality over the fairness of individual proceedings – and did so long before the current 6-3 supermajority (as Justice Harry Blackmun noted in a dissent more than 30 years ago, “one searches the majority’s opinion in vain… for any mention of petitioner[]’s right to a criminal proceeding free from constitutional defect”). And though it will mean that defendants like Jones continue to serve time in prison for conduct that the court has said is not criminal, AEDPA’s bar on second or successive petitions provides a vehicle for that result. This car is good for just one ride.”

SCOTUSBlog, On the narrow road to challenge a federal conviction, when is a vehicle “inadequate”? (October 28, 2022)

– Thomas L. Root

How Many Angels with Guns Can Fit on the Head of a Pin? – Update for August 4, 2022

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‘WAIVING’ DAVIS RETROACTIVE RELIEF GOODBYE

Robber160229Deandre King was convicted of conspiracy to rob a bank and using or carrying a gun while doing so (an 18 USC § 924(c) violation). He signed a plea deal that, among other things, included a waiver giving up “the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding unless the sentence exceeded the statutory maximum.”  The waiver language included waiving post-conviction motions filed pursuant to 28 USC § 2255.

As you may recall the § 924(c) count is the darling of the prosecution set. A § 924(c) count (for using, carrying or possessing a gun during and in relation to a drug offense or a crime of violence) carries a mandatory sentence of at least five years. Plus, the law requires the mandatory sentence be imposed consecutively to any other sentence imposed. So while the conspiracy to rob might carry an 51-month sentence (as Deandre’s did), piling a § 924 count on top ensured another 84 months (the mandatory minimum where the gun is “brandished”), for  a 135-month stay.

deal160516Deandre’s plea deal probably didn’t seem too bad to him, because the government dropped some other counts, including another § 924(c) count that would have added another five years. Besides, the law was clear: bank robbery was a crime of violence, and all the Circuits had long since agreed that a conspiracy to commit a crime of violence was itself a violant crime.

However, four years after Deandre’s conviction, the Supreme Court held that all the Circuits were wrong. In United States v. Davis, the Supreme Court held that conspiracy to commit a violent offense could not be used as an underlying crime of violence supporting a § 924(c) conviction.

The Davis holding has since been held to be retroactive, so Deandre jumped on it, filing a § 2255 asking his district court to throw out the § 924(c) conviction.

His district court refused, however, holding that Deandre’s plea agreement waiver prevented such a filing. Last week, the 11th Circuit agreed, holding that the mere fact that no one foresaw a change in the law that would nullify a conviction did not invalidate a waiver.

angels170726Deandre argued that the Davis change was the equivalent to his being sentenced in excess of his stastutoery maximum. The argument has some appeal. After all, if he was not guilty of the § 924 count, then the statutory maximum sentence would be zero, and any § 924(c) sentence in excess of zero would exceed the statutory maximum (at least in some metaphysical way).

But the 11th Circuit was uninterested in counting the angels on the head of the pin:

Forcing constitutional claims into the statutory-maximum exception would render the promise of waiver virtually meaningless, robbing defendants of a powerful bargaining tool,” the Circuit held. “Defendants who agree to waive their appeals receive the immediate benefit of reduced penalties in return—as King’s case shows. But if that waiver becomes contingent, whether the defendant wishes it to be or not, a bargain will be much harder to strike… We are not the only circuit court to recognize the value of enforcing appeal waivers against claims based on new constitutional rules… Two of our sister circuits have recently held that such waivers prohibit § 2255 motions based on Davis. The 7th Circuit explained that a Davis challenge did not “satisfy any of its recognized bases for avoiding a valid collateral-attack waiver…” and the 6th Circuit interpreted an explicit carve-out in an appeal waiver for sentences exceeding “the statutory maximum” to refer to “the maximum sentence at the time of sentencing, not to maximum sentences throughout a defendant’s prison term based on future changes to the law.

What this means is that while Deandre is not guilty of the § 924(c) conviction, he’ll do the time for it.

King v. United States, Case No 20-14100, 2022 US App LEXIS 20910 (11th Cir Jul 28, 2022)

– Thomas L. Root

Supreme Court’s Final Days Include Criminal Decisions – Update for June 20, 2022

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BIG CRIMINAL DECISIONS STILL PENDING WITH ONLY TWO WEEKS OF SCOTUS TERM LEFT

The Supreme Court held two opinion days last week, but the most-watched criminal cases – United States v. Taylor, Concepcion v. United States and Ruan v. United States – remain among the 18 opinions yet to be issued before the Court’s term ends on June 30.

scotus161130Most people expect the two “big” cases, New York State Rifle & Pistol Assn v. Bruen (a 2nd Amendment case) and Dobbs v. Jackson Women’s Health Organization (the possibly-leaked abortion decision) to happen on the last day. But Taylor, which concerns whether an attempted offense that would be a “crime of violence” for application of 18 U.S.C. § 924(c) – the mandatory consecutive sentence for using a gun – is a “crime of violence” if it is only attempted but not completed – has been hanging around for six months since its December argument. Concepcion, which concerns proper resentencing considerations in First Step Section 404(b) resentencing, and Ruan, which considers physician liability under 21 USC 841(a), was argued in the Court’s February sitting.

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that “the standard and ready explanation, of course, for why decisions in Taylor and Conception may be taking a long time is because the Justices are (perhaps deeply?) divided in these cases, and so we should expect multiple (and lengthy?) opinions. And, to add a bit of spicy speculation, I am inclined to guess that the delay is also partially a function of the Justices in these cases not being divided neatly along the “standard” ideological lines.”

rules201202The only case of interest to defendants last week was Kemp v. United States. In that case, petitioner Dexter Kemp filed a 28 USC 2255 motion in 2015. The District Court dismissed the motion as untimely, and Dix did not appeal. But three years later, he sought to reopen his 2255 under Federal Rule of Civil Procedure 60(b)(1) and (6), rules which permit a court to reopen an otherwise final judgment if certain conditions are met. A 60(b)(1) motion has to allege that a mistake was made, and must be filed within a year, Relief under Rule 60(b)(6) for any other just reason can be filed at any time, but is available only when the other grounds for relief specified in the Rule don’t apply.

Dex was right that the District Court had goofed on dismissing his § 2255 motion as untimely. In a just world, his § 2255 should be reopened, and that would be that. But in the real world, it’s not that easy.

The Supreme Court held that a judge’s error of law is a “mistake” within the meaning of Rule 60(b)(1), meaning that Dex’s motion fit under Rule 60(b)(1). Subject to the Rule’s one-year limitations period, Dex’s motion was late and had to be dismissed as untimely.

Sentencing Law and Policy, Any (spicy?) speculations about why SCOTUS has not yet decided Taylor or Conception, two little sentencing cases? (June 13, 2022)

Kemp v. United States, Case No. 21-5726, 2022 U.S. LEXIS 2835 (June 13, 2022)

– Thomas L. Root

Fecklessness Is No Legal Strategy, 1st Circuit Says – Update for November 15, 2021

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

SOMETIMES THE DIFFERENT DRUM IS POUNDING OUT THE WRONG BEAT

diffdrummer211115Sandy Flores-Rivera was one of 46 people charged with a drug-trafficking conspiracy. At trial, most of the evidence against Sandy and her co-defendants came from three cooperating witnesses, all of whom fingered Sandy and helped the government present non-testimonial evidence.

After the jury returned guilty verdicts against Sandy and the other defendants, the government belatedly disclosed some pretrial documents created by a cooperating witness. One was a letter to the lead prosecutor, in which the witness described himself as the government’s “best cooperator: “I promised you to do everything you said and I have done it to the point that you know how this has gotten, we have more than we expected, more evidence and more strength for the case…” Another document consisted of notes that the cooperating witness kept of conversations he had with other cooperators while they were in prison together, in which he had encouraged them to testify. Finally, the government disclosed a note showing the FBI knew the cooperating witnesses were talking to each other in jail.

Of course, the government’s failure to disclose this evidence – which suggested the cooperating witnesses were singing a version of the “truth” they thought would be most pleasing to the authorities who controlled their fates – was a slam-dunk violation of the constitutional requirement of disclosure enshrined in Brady v. Maryland.

[Remember Brady? Brush up on it here]

Sandy and the other defendants moved for a new trial under Rule 33(b) of the Federal Rules of Criminal Procedure due to the Brady violation, but the district court turned them down. On appeal, the other defendants again raised the Brady violation, and this time someone listened: the 1st Circuit granted those other defendants new trials because the court found it was “reasonably probable that the impeachment evidence would have caused the jury to acquit” them.

lawyerjoke180807Sandy’s lawyer, however, marched to a different drummer: he didn’t bother raising the Brady issue in Sandy’s appellate brief, but rather argued a couple of loser claims that hadn’t even been preserved in the lower court record. Those issues ran into what the 1st Circuit called “a stone wall of controlling precedent.” In fact, the Circuit even pointed out in amazement that Sandy’s counsel had joined in the new trial motion at the district court but inexplicably “did not renew the argument despite his clear awareness of his ability to adopt a co-appellant’s arguments in a consolidated case… since he reserved his right to do so in Sandy’s opening brief.”

After losing her appeal while her co-defendants won theirs, Sandy filed a post-conviction motion under 28 USC § 2255 claiming her attorney rendered ineffective assistance on appeal. Last week, the 1st Circuit agreed.

The Circuit said the government’s case against Sandy “depended quite heavily on the largely uncorroborated testimony of the three cooperators. Hence, she would have prevailed on the Brady issue just like her co-defendants had she raised the issue. And for that reason, she establishes prejudice under Strickland.”

Appellate counsel performs deficiently, the Circuit said, when he or she “ignor[es] issues that are clearly stronger than those presented.” Forgoing an argument is not a reasonable strategic decision when there is no downside to objecting to an error or when the omitted argument would not “detract from” but would rather “build upon” another challenge.

feckless211115“Here,” the 1st ruled, “any reasonable attorney handling Flores-Rivera’s appeal would have known of the Brady claim’s availability even after a cursory review of the district court docket and the arguments offered by Flores-Rivera’s co-defendants… Appellate counsel opted to forgo an obviously serious, preserved Brady claim in favor of two dubious plain-error challenges, one of which was foreclosed by binding precedent. That choice resembles rejecting a lifeboat in favor of two lily pads… Fecklessness is not a strategy.”

Flores-Rivera v. United States, Case No. 18-1963, 2021 U.S. App. LEXIS 32404 (1st Cir. Oct 29, 2021)

– Thomas L. Root