Tag Archives: AEDPA

“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


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.


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