Amici Line Up to Support First Step Habeas Right – Update for August 18, 2026

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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.

AMICUS BRIEFS SUPPORT USING HABEAS CORPUS TO ENFORCE FIRST STEP

In a post back when the summer lay ahead of us with such promise, I reported that the Supreme Court had granted review in Maxwell v. Thomas. Maxwell seeks to resolve a circuit split over whether an inmate can bring a 28 USC § 2241 habeas corpus claim against the Bureau of Prisons when the First Step Act time credits being denied to him would only give him more time in halfway house or home confinement.

Because some circuits view halfway house and home confinement as a mere change in prison designation while the prisoner remains in the custody of the BOP, they have held that habeas corpus – which they hold must seek release from BOP custody altogether – is unavailable to prisoners who are denied FSA credits to which they are otherwise entitled under 18 USC  § 3632 or denied use of those credits for halfway house or home confinement otherwise allowed under 18 USC § 3624(g)(2). The Supreme Court has granted review in Maxwell to resolve the split among the circuits.

Last week, a blizzard of amicus briefs, from everyone from the National Association of Criminal Defense Attorneys to members of Congress, were filed in Maxwell supporting use of habeas corpus to enforce the right to FSA credits.

Rep Jamie Raskin (D-MD) – the ranking member of the House Judiciary Committee – filed a brief supporting use of habeas corpus to enforce the right to FSA credits. Raskin told the Court that Government Accountability Office “audits have unfortunately documented BOP’s systemic failures to properly apply time credits for prisoners participating in recidivism reduction programs and to track prisoners’ eligibility for transfer to pre-release custody. These failures do not merely inconvenience individual prisoners; they undercut the heart of the incentives-based programs that Congress believed would promote the rehabilitation of prisoners and reduce recidivism. Habeas relief is therefore an important backstop to enforce the system of incentives and rewards on which the success of the First Step Act’s programs hinges. A decision by this Court recognizing the availability of habeas to enforce prerelease transfer would further Congress’s historic, bipartisan objectives in the First Step Act of 2018: promoting rehabilitation and reducing recidivism.”

On the Senate side, Minority Leader Richard Durbin (D-IL) and Judiciary Committee member Senator Cory Booker (D-NJ) argued in an amicus brief that the Supreme Court had previously observed, “Congress clearly knows how to use mandatory language when it so desires [and] [t]he First Step Act’s system of earned time credits for federal prisoners is a perfect example. Congress eliminated the Bureau’s discretion about awarding earned time credits when statutory prerequisites have been met. The text and structure of the statute make this abundantly clear.”

Given that FSA passage was President Trump’s initiative and that it passed with a bipartisan supermajority, the amicus briefs explaining Congress’s intent and disappointment with BOP performance thus far are a helpful addition to the record.

Maxwell v. Thomas, Case No 25-5930 (cert granted June 1, 2026)

Amicus Brief of Rep, Jamie Raskin, Case No 25-5930 (August 12, 2026)

Amicus Brief of Senators Richard Durbin and Cory Booker, Case No 25-5930 (August 12, 2026)

~ Thomas L. Root

How 2255 Motions Get Decided (And How to Write Them) – Update for August 17, 2026

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After almost two weeks off on vacation – and having enjoyed four grandkids, two leg injuries and one concussion – we’re back.

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

4TH CIRCUIT DECISION IS THOUGHTFUL PRIMER ON 2255 LITIGATION

Curt Flood faced a life sentence when indicted in 2003. His lawyers kicked around the idea of a plea agreement with the government, but an impasse quickly became apparent: the government would come off the life sentence only if he cooperated. Curt told them that he had no interest in doing that.

Curt went to trial instead and, after he lost, he was sentenced to life. In 2011, after the Supreme Court decided Missouri v. Frye and Lafler v. Cooper – two cases that defined a prisoner’s right to effective representation where a plea offer was concerned – Curt filed a motion under 28 USC § 2255.

After 14 years of fits and starts, the 4th Circuit last week upheld the denial of his § 2255 motion. The decision is a primer on how § 2255 motions are judged at different levels of review, as well as guidance on what a prisoner must claim to succeed and should be required reading for everyone who intends to file one.

Under Rule 4 of the Rules Governing § 2255 Proceedings, a district judge must first decide whether the motion and the trial court record “conclusively foreclose[] relief” despite the 2255’s claims. For example, if a 2255 claim was that the prisoner never signed his plea agreement, the court could safely dismiss the § 2255 motion without further ado by looking at the document and the transcript of the change-of-plea hearing. If, on the other hand, the record does not contain a signed plea agreement and the prisoner was not asked whether he had seen and agreed to its terms, Rule 8 would require the court to order additional briefing and the collection of evidence. Based on that additional record, the court may find that an evidentiary hearing is needed.

The standards by which the 2255 claims are reviewed at each stage have always seemed squishy. What is “conclusively?” And what standard applies to a court’s decision to hold an evidentiary hearing after Rule 8 briefing? Last week’s 4th Circuit decision addressed those questions, comparing Rules 4 and 8 to civil litigation and providing structure to 2255 proceedings that should benefit serious movants.

“When we review a district court’s denial of a § 2255 motion at the Rule 4 stage,” the Circuit ruled, “we are guided by the principles governing review of a [Fed.R.Civ.P.] 12(b)(6) dismissal. So we ‘accept a petitioner’s well-pleaded allegations as true,’ and ask whether the record conclusively forecloses relief notwithstanding those allegations. And when a district court denies a § 2255 motion at the Rule 8 stage—after receiving additional briefing and evidence, but without holding an evidentiary hearing—’we treat the district court’s decision like a grant of summary judgment.’ So we will affirm a district court’s denial of relief without a hearing when the record leaves ‘no genuine dispute as to any material fact.’ Fed.R.Civ.P. 56(a). In so doing, we do not weigh evidence or make credibility determinations. And at both the Rule 4 and Rule 8 stages, we draw all reasonable inferences in the movant’s favor.”

The 4th’s opinion illustrates why a 2255 movant has to ensure that his or her argument is consistent. Curt claimed in his § 2255 motion that his attorneys were ineffective because “they failed to seek a plea agreement… [and] “never even engaged in plea discussions.” But in the same filing, he acknowledged that when the government approached his lawyers about a plea, they met with the prosecutors to discuss it. “In those discussions, the government made clear ‘that in order to receive an offer, Mr. Flood would have to proffer’,” and Curt had already told his attorneys that he would never do so.

However Flood frames counsel’s alleged deficiency, the claim fails. Read as a charge that counsel ‘never even engaged in plea discussions,’ it founders on the record: By Flood’s own admission, his counsel met with the prosecutors and learned that the government’s terms required cooperation. Read instead as a charge that counsel, having met with prosecutors to discuss a plea, should have done something more or pressed harder, it identifies no act or omission that fell outside the wide range of reasonable professional assistance. ‘Try harder’ or ‘do more’ is not a Strickland theory… Absent some specification of counsel’s deficient acts or omissions, the record and filings conclusively show that Flood is not entitled to relief.

Oliver Wendell Holmes, Jr., once said, “The language of judicial decision is mainly the language of logic.” A 2255 movant should spend extra time ensuring that his or her evidence and arguments tell a coherent and substantial story.

United States v. Flood, Case No. 23-7032, 2026 U.S. App. LEXIS 24462 (4th Cir. Aug. 13, 2026)

~ Thomas L. Root

5th Circuit Emasculates SCOTUS Hunter Decision – Update for August 4, 2026

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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.

WE’RE OUTTA HERE

One week a year, we take a break from the newsletter. That will be next week, while we are abused by our grandkids on vacation.  THERE WILL BE NO NEWSLETTER ON AUGUST 10, 2026. We will be back on August 17th.

THE ORANGUTANS SPEAK?

A little more than a month ago, the Supreme Court ruled that appeal and collateral attack waivers contained in plea agreements were not rigid but instead should be found to be “unenforceable when it would result in a miscarriage of justice — meaning, when it would leave in place the kind of egregious sentencing error that would bring the judicial system into disrepute.”

The decision, Hunter v. United States, reversed a 5th Circuit policy that refused to set aside waivers for any error whatsoever. SCOTUS held that the error in the sentencing must be obvious, not one that a judge could reasonably make.” The high court ruled that “[t]he point of the miscarriage-of-justice limit… is to offer a safety valve for extreme cases—a way out of waiver when the system’s integrity is at stake.”

The Court further explained the types of situations that would qualify for the miscarriage-of-justice exception:

A defendant may appeal a sentence exceeding what the relevant statute allows—most commonly, a term of years above the maximum prescribed. Second, a defendant may appeal a sentence infected with a blatant constitutional error, such as when a judge takes account of a constitutionally impermissible factor (like race) or imposes a constitutionally infirm condition of supervised release (like barring a defendant from becoming pregnant). And third, a defendant may appeal if his sentence was imposed without some minimum of civilized procedure, as in, yes, the [trial by] twelve orangutans case—or less extravagantly, one in which the judge refused to hold a hearing consonant with basic principles of law.

SCOTUS said other more “uncertain or ordinary” errors would not override an appeal waiver. It observed that “mistakes” in “the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors” are “unfortunate but inevitable… and  cannot cancel an appeal waiver.”

In the Hunter case, defendant Munson – convicted of a white-collar offense – was ordered to get mental health therapy while on supervised release and to take whatever medication his mental health provider told him to take. Munson was uninterested in downing the drugs some psychiatric doc ordered. He did not appeal his sentence but rather the mental health condition in his supervised release, making a 5th Amendment argument that he couldn’t be told to dope himself up by the court.

The Supreme Court did not settle the matter for Munson. It just told the 5th Circuit that it couldn’t automatically reject the appeal without testing the waiver provision against a miscarriage of justice standard.

Last week, the 5th Circuit applied the new standard but unsurprisingly found against Munson once again. The Circuit held that a court order that a defendant be doped up against his will is normal and acceptable, because “there is a nexus between the Medication Condition and the government’s interests in promoting Hunter’s health and reducing his likelihood of re-offending.” Plus, he could always appeal to the District Court if a “dispute” arose about Hunter’s taking particular medication, and “the probation officer can’t resolve the dispute,” and, anyway, the meds will be prescribed by a physician who, the Court assumes, will not “prescribe mental health medication against Hunter’s medical interest.”

Additionally, the Medication Condition “does not rise to the level of ‘egregious” constitutional error that would ‘bring the judicial system into disrepute’ because the same condition has been “broadly imposed” by federal district courts “as a ‘stock’ special condition” of supervised release.” Finally, the condition is nothing like the Hunter opinion’s examples of race-based or gender-based terms that would be “blatantly unconstitutional.” Such errors would “stem from extreme animus or prejudice,” the Circuit said, “which are never appropriate considerations in sentencing. In contrast, there is no suggestion here that the district court imposed the Medication Condition for such invidious purposes.”

No one expected the 5th to roll over after the SCOTUS Hunter opinion slapped down its “waivers-are-bulletproof” policy. However, its quick and dubious defense of a district court’s decision to practice psychiatric medicine on a white-collar defendant – complete with anodyne justifications that could fit any case – suggests that SCOTUS has a lot more oversight to apply to appeals waiver enforcement.

United States v. Hunter, Case No 24-20211, 2026 U.S. App. LEXIS 22637 (5th Cir. July 29, 2026)

~ Thomas L. Root

Seize My Airplane? I’ll Drink to That – Update for July 30, 2026

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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.

HEY, ALASKA! THIS BUD’S FOR YOU…

Fourteen years ago, a long-time bush pilot got hired to fly a woman into a remote Inuit town where her husband was postmaster. As a surprise, she packed a few cases of Budweiser and Busch Light for him (because the town was dry).

But the town was not just dry. It was as dry as the Atacama. In fact, the town ordinances outlawed bringing any alcoholic beverage into the town.

In the 1980s, Alaska authorized municipalities and villages to declare themselves “dry villages.” Since then, some have voted simply to regulate the sale of alcohol, limiting it to restaurants, package stores, and the like. Others prohibit selling alcohol but not possessing it. A few would make Carrie Nation blush, banning the sale, importation, and possession of alcohol altogether.

For the hard-core teetotalers in the most restrictive villages, Alaska state law lends a hand, making it a crime to “knowingly send, transport, or bring an alcoholic beverage” there. Alaska Stat. § 04.11.499(a). The resulting penalties depend on the amount of alcohol and the defendant’s status as a repeat offender. Transporting 12 gallons of beer or having two booze-hauling prior makes the crime a class C felony. On the other end of the spectrum, first-time offenders who transport less than 12 gallons are guilty of only a class A misdemeanor (three days in jail and a $1,500 fine).

But then, there’s forfeiture. Using a plane to transport the hooch subjects the aircraft to mandatory forfeiture — no matter the quantity and no matter the seriousness of the offense. § 04.16.220(a)(3)(C).

State troopers inspected bush pilot Ken Jouppi’s Cessna 206 Stationair before he took off from Fairbanks with his passenger, the wife of the postmaster in very rural Beaver, Alaska (110 miles from Fairbanks by air, because there’s no other way to get there). Beaver, population 48, sits on the north bank of the Yukon River. To suggest that there’s not much “there” there is an understatement.

Ken says he didn’t know that his passenger had stuffed her cargo with Budweiser and Busch, a couple of cases worth. There is probably a backstory here, because the Alaska State Police seemed to know what they were looking for when they swarmed the plane as Ken awaited departure and seized the beer. Somehow, they knew…

Ken was convicted of a misdemeanor and sentenced to three days in jail and a fine. State prosecutors also asked that he be required to forfeit his plane, but the trial judge declined.

The state appealed that decision. Last year, the Alaska Supreme Court ruled that the state’s seizure of Ken’s plane was not an excessive fine. (While it’s hard to say the plane’s value, which the filings in the case estimate at $95,000, older Stationairs than Ken’s are offered online for $185,000). No matter, the Alaska Supreme Court said: the harm caused by alcohol in rural Alaska is so great that severe punishment is not disproportionate.  

Last week, the SCOTUS agreed to hear the case, which asks whether forfeiture of Ken’s livelihood implicates the Excessive Fines Clause of the 8th Amendment. The issue is whether, in determining when a fine contravenes the Excessive Fines Clause, courts may consider the gravity of the underlying offense purely in the abstract or should consider the gravity of the specific defendant’s wrongdoing.

The case will be argued in the fall.

Jouppi v. Alaska, Case No. 25-246 (cert. granted July 20, 2026)

Alaska Beacon, Alaska bush pilot’s bootlegging case heads to the US Supreme Court later this year (July 20, 2026)

~ Thomas L. Root

Why Is Anyone Even Surprised? – Update for July 28, 2026

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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.

PARDON OUR GULLIBILITY, MR. PRESIDENT

In May – the springtime of hope, you might say – the Wall Street Journal reported that the White House was considering a somewhat regal but still welcome grant of clemency to 250 people in celebration of the USA’s semiquincentennial on July 4th. The clemency might happen on June 14th (Trump’s birthday, a grant that would have appeared very imperial) or July 4th.

It didn’t happen in June. It didn’t happen in July. And indications are that – unless you have money, connections, or a case that makes political points for Trump – it ain’t gonna happen ever.

A few things did happen in July. On July 3rd came a Trumpian grant of pardons to 11 men, 10 of whom had been convicted of crimes related to the Clean Air Act. The 11th was Adam Kidan, a major Republican donor who had served about two and a half years for his role in a scheme to lie to banks in order to finance a casino boat company.

The Clean Air Act pardons benefited people who had sold or installed devices for diesel trucks that defeated their emissions controls, making them more efficient but far more polluting. Trump described the people on the list as having been  persecuted by President Joe Biden’s administration for “fixing their car.”

The pardons included not just the people who had committed the Clean Air Act violations but pardons for six companies who were also convicted for the same offenses. The corporate pardons enabled the companies to erase millions of dollars in fines.  Trump’s pardon of companies was the first expansion of executive clemency power to pardon companies in modern American history, a move Bloomberg Law described as “tracing back to England’s King Charles II.”  The corporate clemency grants have wiped out almost $200 million in financial penalties, some of which were restitution.

But how about the rest of the 20,000-plus clemency petitions on file? President Trump told a swing at those, too, but not the way prisoners hoped. Last weekend, Trump quietly denied 5,607 commutation applications and 300 pardon applications from “people who mostly lacked political connections and had waited patiently in a queue while he awarded pardons and commutations to allies who had skipped the line,” as The New York Times described it.

The denials were announced inside the Dept of Justice in a letter dated July 14 from Ed Martin, the U.S. pardon attorney, to U.S. attorneys across the country. The list is dated July 10, 2026, but was released publicly only on July 17, 2026.

Alice Marie Johnson, the White House pardon czar, said in a social media post in late May that she had asked several university clemency clinics “to submit candidates that deserve a second chance for consideration.” The Times reported that the University of St. Thomas School of Law in Minneapolis, run by law professor and clemency expert Mark Osler, submitted more than 15 applications in response. Four were in the batch of rejections issued this month. The remainders are still pending, along with thousands of others.

“It’s very discouraging,” Osler told the Times. “They’re not giving a fair shake to the people who have followed the rules, who have been leaders in prison, who have done all the programming they can, who have truly changed themselves for the better.”

Bloomberg Law, Trump Extends Pardons to Companies, Echoing a 17th Century King (July 19, 2026)

New York Times, Trump Rejected Nearly 6,000 Clemency Applications Amid Hope of Pardon Wave (July 20, 2026)

DOJ, Pardon Applications Denied by President Donald J. Trump on July 10, 2026

~ Thomas L. Root

5th Circuit Signals Fresh Attack on Felon-In-Possession Constitutionality – Update for July 27, 2026

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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.

We note that this is our 2,000th post on this blog, an effort that took us 10 years and 8 months to accomplish. Of course, 2,000 is not significant in any number system other than a base 10 (in binary, it’s 0b11111010000), but we are commemorating it anyway.

IS THE FIFTH CIRCUIT GUNNING FOR FELON-IN POSSESSION?

Two felon-in-possession decisions from the 5th Circuit last week suggest that a Supreme Court battle over the constitutionality of 18 USC § 922(g)(1) – the statute that prohibits felons from possessing guns and ammo – is all but inevitable.

In June, Curtis Squire, a convicted drug dealer, lost his argument that § 922(g)(1) was unconstitutional as applied to his situation, one in which a gun was found in his house. He argued that keeping a gun at home for defense was a right enshrined in American history, even for people who otherwise were prohibited by colonial law from carrying a firearm. For good measure, he also claimed that the statute violated the 2nd Amendment on its face and that it was unconstitutional under the Commerce Clause.

ICYMI, the Commerce Clause, Article 1, Section 8, Clause 3 of the Constitution, gives Congress the power “to regulate commerce with foreign nations, among states, and with the Indian tribes.” Congress has often used the Commerce Clause to justify exercising power over the activities of states and their citizens, leading to significant controversy regarding the balance of power between the federal government and the states.

Ever wonder why § 922(g) only applies to guns and ammo that have traveled in interstate commerce?  It’s because without an interstate commerce nexus, federal law cannot limit the mere possession of a gun. That’s why § 922(g)(1) can’t prevent a convicted felon from building a gun at home. It’s why a § 922(g) prosecution always features testimony from some ATF agent that the gun at issue crossed state lines before falling into the defendant’s hands.

Sometimes the interstate nexus is too attenuated. In Curtis’s case, he argued that his possession of the gun – which was manufactured in Massachusetts or Brazil or somewhere other than Louisiana – was too insignificant to “substantially affect” interstate commerce. Thirty years ago, the Supreme Court struck down the Gun Free School Zones Act of 1990 (which made possession of a gun in a local school zone a federal crime) in United States v. Lopez. Lopez held that Congress exceeded its constitutional authority under the Commerce Clause because possessing a gun in a local school zone is not an economic activity that substantially affects interstate commerce.

The 5th Circuit blew past Curt’s Lopez argument with a footnote, holding that the Commerce Clause challenge was foreclosed by its decision in United States v. Diaz. The Panel went on to rule that Curtis was dangerous because of his drug trafficking offense, “which places him in a class of dangerous felons that our regulatory tradition permits legislatures to disarm.”

Last week, the 5th Circuit granted en banc review to the decision. Rehearing en banc has the case reheard by all 17 judges in active service on the 5th Circuit and as many of the seven judges on senior status as want to join in. Contrary to inmate lore, en banc review rarely granted, generally about two-tenths of 1% a year of all cases. En banc review is used to reverse prior circuit precedent or where the circuit’s position conflicts with other circuits.

In Curt’s case, enough judges found the question of whether § 922(g)(1) exceeds Congress’s authority under the Commerce Clause debateable to hear the case.

The 5th Circuit invalidated a § 922(g)(1) conviction in a more conventional style last week, holding that the felon-in-possession law was unconstitutional as applied to Talanzo Debrow.  Tal’s  prior felony conduct took place in May 2019, arising out of a traffic stop on a stolen vehicle in which he was the driver. Talanzo attempted to flee the traffic stop, but, in doing so, he “shifted the car twice to ram into the troopers’ cars.” Tal pled guilty to aggravated criminal damage to property in violation of Louisiana Revised Statute 14:55(A).

After he did his time, police caught Talanzo with a gun. He was charged with a violation of § 922(g)(1) felon-in-possession.

The district court ruled that the felon-in-possession was constitutional, but last week, the 5th reversed. Tal argued that § 922(g)(1) was unconstitutional as applied to him because his conviction only related to damage to property. The government argued that Talanzo’s “underlying facts rise to the level of lifetime dangerousness” and that the Louisiana state he was convicted under itself was a crime of violence.

The 5th Circuit ruled that the predicate crime of aggravated property damage was a property crime, not a crime of violence. It looked at the statute categorically, and refused to look at the uncharged conduct of ramming police cars: “The government principally asks us to affirm a § 922(g)(1) conviction on the basis of conduct underlying the predicate, as opposed to the predicate itself… The relevant consideration is a defendant’s prior convictions…’,” the Circuit held, “not unproven conduct charged contemporaneously with a defendant’s § 922(g)(1) indictment or prior conduct that did not result in a felony conviction.”

Talanzo’s case suggests one route to invalidating a § 922(g)(1) conviction. But a reversal in Curtis’s case – if it comes – would be a huge change in application of the most-used federal law on firearms on the books. 

United States v. Squire, Order (5th Cir. July 20, 2026)

United States v. Diaz, 116 F.4th 458 (5th Cir. 2024)

United States v. Squire, 177 F.4th 614 (5th Cir. 2026)

United States v. Lopez, 514 U.S. 549 (1995)

United States v. Debrow, Case No 25-30380, 2026 USAppLEXIS 21976 (5th Cir. July 23, 2026)

The Reload, Appeals Court to Reconsider Foundation of Federal Gun Control (July 26, 2026)

~ Thomas L. Root

Rehab Calls From the Right – Update for July 24, 2026

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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.

DAILY CALLER CALLS FOR SECOND CHANCES

Conservative news website The Daily Caller two weeks ago called on Congress to pass legislation creating an “earned pathway to federal expungement.”

Former prosecutor Rachel Wright, National Policy Director for Right On Crime, argued, “President Donald Trump appointed Alice Marie Johnson as his pardon czar, he sent a clear message to the nation: Accountability and second chances are not mutually exclusive… Congress should advance legislation creating an earned pathway to federal expungement. The current system offers deserving individuals very few opportunities to move beyond their past mistakes, but by rewarding rehabilitation, we can create a more effective justice system and strengthen public safety.”

Wright wrote that nearly every state has adopted some form of expungement or automated record sealing, but federal law provides no course for doing so. She concluded that “if leaders across the political spectrum have concluded that perpetual punishment does little to enhance public safety, Washington should follow suit.”

The Daily Caller, It’s Time for Feds to Give Non-violent Offenders A Second Chance (July 10, 2026)

~ Thomas L. Root

DOJ Continues To Circle the Drain – Update for July 23, 2026

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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.

TOUGH TIMES FOR PROSECUTORS

The Dept of Justice is now requiring all Criminal Division Assistant U.S. Attorneys to maintain at least 25 open cases, “tightening the Trump administration’s grip on operational decisions previously left to US attorneys,” according to Bloomberg Law.

Deputy Attorney General Todd Blanche’s office communicated the informal “25 open matters” threshold to all 93 U.S. attorneys in recent weeks, with an emphasis on driving up public safety and fraud statistics, four people familiar with the new policy told Bloomberg Law. A formal policy change is still under development, they said.

The new policy comes as DOJ brass try to dispel criticism over personnel departures by purporting to show that the Department is doing more with less.

DOJ has hemorrhaged thousands of veteran attorneys since Trump returned to office due to the President’s revenge campaigns, immigration crackdown, and increasingly overwhelming workloads, Daily Beast reported last week.

The government has lowered hiring standards and offered signing bonuses, despite historically being deluged with applications from lawyers who were happy to take a pay cut in exchange for the prestige of DOJ service.

“A one-size-fits-all policy is unworkable,” said Mark Yancey, a former senior official in the DOJ’s Executive Office for US Attorneys. “These things need to be worked at the district level by the US attorney.”

The quota runs the risk of prosecutors feeling pressured to bring cases with insufficient evidence just to hit their targets, Yancey told Bloomberg Law.

Last week, Blanche appeared before the Senate Judiciary Committee for a hearing on his nomination to be the next Attorney General.  In the runup to the hearing, a letter signed by 2,649 lawyers and legal professionals was delivered to the Senate urging rejection of Blanche as AG.

“No one in the history of the Justice Department has moved directly from representing a president in criminal proceedings to running the institution that prosecuted those cases,” said Traci Feit Love, Executive Director of Lawyers for Good Government. “Todd Blanche isn’t America’s Attorney General. He is Donald Trump’s personal fixer with a federal badge. The Senate has a constitutional obligation to say no.”

During his confirmation hearing, Blanche was braced by Sen. Cory Booker (D-NJ) over BOP’s decision to place Ghislaine Maxwell (convicted of helping Jeffrey Epstrein commit sex and trafficking offenses) in a camp, a move some have alleged was in exchange for her testifying that President Trump committed no sex offenses with Epstein. Blanche told Booker that Maxwell was “receiving threats,” which merited the transfer.

Booker argued that under BOP policies, an inmate who receives threats is moved to solitary confinement, not to a minimum-security prison camp.

Blanche countered: “That’s not always true,” but Booker rejected that claim. “What is true is that someone who is accused of child sex trafficking under the Bureau of Prisons’ own policies is not put in a facility like this that seems clearly like a reward,” he said.

What the exchange failed to note that a May 2026 change in BOP designation policy I reported on last month grants the Attorney General the right to make any designation decision he or she pleases regardless of BOP policy. The unheralded change in designation policy that has been in place for 135 years provides ex post facto authority for the  Maxwell placement in a camp, as well as a tool that can be abused in years to come to benefit the Administration’s friends and punish its foes.

Questions over Blanche’s role in the DOJ “anti-weaponization” fund and in handling the Epstein files have left at least two Republican senators on the Judiciary Committee undecided. If just one votes ‘no,’ that could block the acting attorney general’s nomination from moving forward. A vote is likely later this month.

US Law Week, DOJ Sets Case Quotas for Line Prosecutors in Push to Boost Stats (July 13, 2026)

Daily Beast, Trump Justice Department Scrambles as Lawyers Flee in Droves (July 14, 2026)

Letter to Senators Grassley and Durbin, Senate Judiciary Committee (July 10, 2026)

The Hill, Booker: ‘Absurdity’ for Blanche to be concerned about Maxwell safety (July 16, 2026)

Christian Science Monitor, Blanche’s nomination for attorney general uncertain after hearing (July 17, 2026)

~ Thomas L. Root

A Complaint? I’ll Give You Something To Complain About… – Update for July 22, 2026

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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.

RETALIATION? NOT US…

The Marshall Project and NPR published the second report in their investigation of the Federal Bureau of Prisons grievance procedures last week, this one focused on alleged BOP retaliation against prisoners filing grievances complaining of BOP staff violence and sexual abuse.

A previous report found that only 1.75% of grievances filed in 2023 were granted. A majority were rejected for procedural errors or “administratively closed” for other reasons. The findings were based on a massive federal database, published by the Data Liberation Project, containing nearly 1 million federal prison grievance cases dating back to 2000.

Last week’s report observed that the dataset “only includes instances where incarcerated people were able to file a complaint at all. An unknown number of cases, especially those involving physical and sexual violence, go unreported, as the same officers accused of abuse can silence those trying to seek help, according to court records, lawsuits, and interviews with attorneys, incarcerated people, advocates and former bureau officials.”

A report by the Government Accountability Office last May found that fear of retaliation was a major impediment to reporting sexual abuse in federal prisons. Can’t be, BOP spokeswoman Randilee Giamusso said in response: Bureau policy prohibits retaliation of any kind, and the BOP reviews and investigates all allegations of abuse. She told NPR that the administrative remedy system – despite its under 2 pct approval rate – is “a safeguard intended to foster resolution within the system, not a barrier to court access.” She noted that “remedies related to sexual abuse can be submitted in other ways, such as “third-party reporting and [Prison Rape Elimination Act]-specific channels,” NPR reported.

The report also quoted current and former BOP prisoners with a different view. “The grievance system is a joke,” said ex-inmate Jimmy Hodge. “If you’re grieving over abuse, they’re going to harass you, they’re going to assault you, but you’re never going to get relief.”

It’s the same dilemma presented to anyone who faces violence in federal prison, the Report found: Try to file an administrative grievance and risk opening yourself up to retaliation — or stay quiet, endure the abuse, and forgo your chance to someday bring your case to court.

The fact that inmates must exhaust the grievance process before they can attempt to sue, NPR reported, gives prison staff a “chokehold over access to the courts,” according to former federal defender Colin Prince, now a civil rights attorney. “The guards functionally have power over whether a prisoner can sue them for their own misconduct,” he said. “The entire system is layer upon layer of bureaucratic insulation against accountability. It simply prevents prisoners from getting access to the courts.”

NPR, A guard punched him on camera. It was still nearly impossible for him to sue (July 13, 2026)

Data Liberation Project, Federal Inmate Complaints (July 6, 2024)

GAO, Improvements Needed to Prevent, Detect, and Address Sexual Abuse (Report No 26-107343, May 5, 2026)

~ Thomas L. Root

7th Circuit Says Courts Should Look for Reason to Accept Late-Filed Notice of Appeal – Update for July 20, 2026

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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.

BETTER LATE THAN NEVER

Incarcerated pro se litigants generally figure that just about any filing deadline can be extended. And judicial devices like the prison mailbox rule – that provides that a document is filed with a federal court on the day it is deposited in institution legal mail – contribute to the false sense of security that deadlines are more suggestions than mandates.

Mostly this is true. Courts are generally very indulgent of pro se filings that are a few days late. But a few deadlines are not easily overlooked by the courts. One is the deadline set for filing 28 USC § 2255 motions, a deadline fixed by statute that courts cannot extend. Another is the deadline for filing a notice of appeal (NOA) under Federal Rule of Appellate Procedure Rule 4.

Rule 4 sets varying deadlines for filing NOAs depending on whether the claim is civil or criminal and whether the litigation included a government party. There are other twists: anyone would think that a 2255 motion challenging a conviction is a criminal matter with a short-fuse 14-day deadline for filing an NOA. But it’s not: habeas corpus is a civil action, even when it challenges a criminal conviction, so a 2255 NOA would be subject to the 30-day filing deadline under F.R.App.P. 4(a).

But it’s not. Because a habeas corpus necessarily includes the government (or one if its officials or employees) as an adverse party, F.R.App.P. 4(a) extends the deadline for filing a § 2255 or § 2241 NOA to 60 days.

The lax, prisoner-friendly deadlines of F.R.App.P. 4(a) make it easy to forget that in appealing a compassionate release motion under 18 USC 3582(c)(1), a prisoner is appealing a holding in a criminal case. Thus, the NOA deadline is a miserly 14 days under F.R.App.P. 4(b).

John Carter forgot. After his compassionate release was denied, he filed his NOA 21 days later, a week past the deadline. The government moved to dismiss his appeal.

F.R.App.P. 4(b)(4) contains a safety valve for people like John. It permits a district court to grant an extension of not more than 30 days after the original NOA due date. But John never filed an extension request, so he seemed to be out of luck.

Not so, the 7th Circuit said last week. Instead, while the Circuit “encourage[s] litigants to file a motion to present their best arguments for an extension,” it ruled that “considering the plain text of Rule 4(b)(4) (and recognizing that most untimely notices of appeal in criminal cases are filed by unsophisticated pro se prisoners)… if a notice of appeal is filed in a criminal case within Rule 4(b)(4)’s 30-day extension window, we should not dismiss the appeal until the district judge has made a finding on whether an extension of time is justified, even when the appellant has not filed a motion.”

The 7th’s holding joins a consensus among six other circuits that filing within the 30-day window triggers the district court’s obligation to determine whether there is good cause or excusable neglect for late filing. Of course, unless the prisoner files a motion explaining why the NOA was late, it is pretty hard for the district judge to make a favorable finding.

The best idea is to file on time. The next best idea is to file a motion justifying why the NOA is late.

United States v. Carter, Case No. 26-1406, 2026 U.S.App. LEXIS 21212 (7th Cir. July 17, 2026)

~ Thomas L. Root