The Difficulty on Bringing State Cases into Federal Habeas Proceedings

Federal Habeas Filings Under §2254

Filing a habeas petition is difficult and very time consuming. Filing an effective habeas petition is even harder. This is in reference to federal inmates filing for 28 U.S.C. §2255 habeas relief in federal court. A majority of these filings fail even before they get a hearing, never getting their day in court.

However, there is an avenue in this area of appeals that allows state inmates with state-level convictions to appeal their convictions on federal-constitutional grounds in federal court. This process and the law behind it comes from the section prior to the one that gives federal inmates this option.

This is Title 28 U.S.C. §2254.

Our most recent client who wanted to file for this type of appeal was the father of a young man in the Midwest United States who was wrongfully convicted of homicide. A case of mistaken identity that resulted in a sentence of life without the possibility of parole. This young man’s life is effectively over, all because an overzealous detective didn’t want to change his “hunch” from day 2 of investigating a murder.

This detective had pinned the crime on this young man, and nothing would dissuade him otherwise. Not a lack of evidence, or even witnesses that heard the confession of the real killer first hand. Add on top of that a drug-addicted witness who was paid a crime-stoppers-type reward before  the trial, who changed his tune from unsure, to a concretely positive identification, and the perfect storm was set for a wrongful conviction.

However, this post is not about this young man or the injustices that resulted in a jury convicting him of murder.

This post is about the process of even getting his case heard before a federal judge. It is immensely difficult, to say the least.

The American Constitution Society

Just this month, in July of 2018, the American Constitution Society (ACS) published a brief entitled “Litigating Fedreal Habeas Corpus Cases: One Equitable Gateway at a Time“. and it gets started this way:

The Supreme Court has described the writ of habeas corpus as “a bulwark against convictions that violate fundamental fairness”1 and as “the judicial method of lifting undue restraints upon personal liberty.”2 Unfortunately, obtaining federal habeas corpus relief has become close to impossible for many prisoners. The vast majority of habeas petitions are post-conviction petitions filed by state prisoners. Congress and the Supreme Court have erected a complicated maze of procedural obstacles that state prisoners must navigate, often without the assistance of counsel, to have their constitutional claims considered in federal court. One wrong procedural step means the prisoner’s claims are thrown out of federal court altogether. In fact, federal judges now dismiss a majority of state prisoners’ habeas claims on procedural grounds.3

The rare state prisoner who successfully manages to run this procedural gauntlet faces a merits review process that has become so deferential to the state that relief remains virtually unattainable. In the extremely rare case where a federal court grants relief, the judgment often comes years after a person has been wrongly imprisoned. At that point, the case has often been forgotten and the state actors responsible for the underlying constitutional violation have often changed jobs. As a result, the federal decision effectively has no deterrent value.

One empirical study revealed that only 0.29% of non-capital state prisoners obtain any form of federal habeas relief.4 That number is troubling in light of evidence that states systematically violate criminal defendants’ constitutional rights5 and data documenting large numbers of wrongful state convictions.6 Many state criminal defendants have no semblance of a fair process to determine their guilt or innocence. They are processed through a system populated by underfunded and overworked criminal defense attorneys who are often structurally ineffective,7 prosecutors whose incentives often are to obtain convictions and appear tough on crime rather than pursue just results,8 and overwhelmed trial court judges who are focused on docket management and often indifferent to the systemic mistreatment of poor people of color. To avoid reckoning with these failures, states often rely on (and even distort) state procedural rules to reject defendants’ constitutional claims.9

The entire brief runs 21 pages long and is well worth the read. Suffice it to say, though, these are very hard to do and do well.

As far as the young man who was convicted of murder? His case is still pending briefs ordered by the government and a report from an impartial magistrate judge before the presiding federal10 judge makes a determination of whether this case is heard, granted, and this young man gets freed from prison.

Judging from past inmates who have tried, however, it is likely that this case will go to an appeal before it gets taken seriously. Maybe even the U.S. Supreme Court.

We will, of course, post any updates in the future.

  1. Engle v. Isaac, 456 U.S. 107, 126 (1982) []
  2. Price v. Johnston, 334 U.S. 266, 269 (1948) []
  3. See NANCY J. KING ET AL., FINAL TECHNICAL REPORT: HABEAS LITIGATION IN U.S. DISTRICT COURTS 6 (2007), http://www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf [hereinafter KING REPORT]. []
  4. See KING REPORT, supra note 3, at 9. []
  5. See, e.g., Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 CALIF. L. REV. 1, 16-23 (2010) (documenting systemic violations of defendants’ rights in the states); see also Lynn Adelman, Who Killed Habeas Corpus?, DISSENT MAGAZINE (Winter 2018), https://www.dissentmagazine.org/article/who-killed-habeas-corpus-bill-clinton-aedpa-states-rights (“As a federal judge, I have observed a considerable number of cases where state courts overlooked clear constitutional violations….”). []
  6. See Brandon L. Garrett, Actual Innocence and Wrongful Convictions in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). []
  7. See, e.g., Eve Brensike Primus, Defense Counsel and Public Defense in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). []
  8. See, e.g., John F. Pfaff, Prosecutorial Guidelines in ACADEMY FOR JUSTICE, A REPORT ON SCHOLARSHIP AND CRIMINAL JUSTICE REFORM (Erik Luna ed., 2017). []
  9. See, e.g., Lee v. Kemna, 534 U.S. 362 (2002) (examining Missouri’s distortion of two state procedural rules to prevent a defendant from presenting witnesses to support his alibi defense); see also Eve Brensike Primus, Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine, 116 MICH. L. REV. 75 (2017) (documenting how states use procedural rules to avoid constitutional challenges). []
  10. Article III []

Dimaya Sentence Reductions via §2255

The Sentence Reduction Potential of Dimaya and Johnson

On April 17, 2018, the Supreme Court of the United States published an opinion in an immigration case called Sessions v. Dimaya. This case caused waves because the left-leaning justices split with right-leaning justices evenly at 4-4 and the deciding vote was the freshman justice Gorsuch.

In what has conservatives raging against their new justice, is really not much of an immigration issue. Well it is, because it brings some civil immigration cases into the constitutional realm of criminal cases. In this case, the question was whether or not a statute which anticipated possible/potentially violent conduct was too vague to withstand constitutional scrutiny.

No attempt is made here to take political sides or to create a partisan bias. The reason why you’re probably here reading this is to find out if Dimaya can be helpful to an inmate in federal prison. The short answer is, “Maybe.”

What did the Dimaya Case Accomplish?

You can skip this section entirely if you’re not interested in the legal analysis of this case, although it does help explain how and who this case helps.

This opinion, with dissents, is nearly 100 pages long, so there is a lot to unpack. However, the essential part that impacts federal inmates has to do with sentencing enhancements for violent crimes.

What the Dimaya case decided was that the residual clause of 18 U.S.C. §16(b) was unconstitutionally vague and violated the U.S. Constitution’s 5th Amendment, which guarantees due process.

Lets make that simpler to understand. That law above, 18 U.S.C. §16(b), is the second part of a 2-part definition of what constitutes a “Crime of Violence.” The first part says that violence has to be used, attempted, or threatened for the underlying crime to be considered a violent one.

The second part, the part we’re interested in here, says that “any other felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The problem with this phrasing is that a “substantial risk” is subjective and vague. A court could assume that violence could be a result of many different types of felonies. While holding a gun, threatening to kill somebody to facilitate a robbery is certainly a crime of violence under the first definition above.

The Supreme Court decided to rely on it’s criminal definition of what makes a law unconstitutional for being too vague. The definition of a violent crime is generally made by §16, as is addressed above. Criminally, however, the definition of a crime of violence is defined in §924(e)(2).

This, by the way, is why this case caused an uproar, because it treats deportation as a punishment severe enough to cross over into criminal punishment, rather than a civil process. And treating deportation as a criminal matter gives non-citizens constitutional due process rights.

But never mind that now.

The Supreme Court decided in Sessions v. Dimaya that the residual clause of the definition of a “crime of violence” from §16 is void for being too vague, just like the residual clause of a “crime of violence” for criminal prosecution from §924(e)(2) is void for being too vague, which they had decided in 2015 with Johnson vs. United States, 576 U.S. ___, ___.

How Dimaya Could Reduce Federal Sentences

Very basically, Dimaya reinforced Johnson’s decision that the residual clauses of the definition of a “crime of violence” in both 18 U.S.C. §16(b) and §924(e) were unconstitutional because they were too vague.

What this means in terms of reducing sentences for federal inmates falls out of this. If a federal inmate had his sentence increased because their crime was a “violent” one, even if there was no violence, then the basis for that sentence increase is now considered unconstitutional.

In order to get this sentence increase eliminated, effectively getting a sentence reduction, involves filing a Motion to Vacate, Set Aside, or Correct Sentence. Sometimes called a 2255,1 this allows a judge to correct a sentence for constitutional reasons (like the Dimaya decision here). However, there is a time limit.

The law that regulates the use of a 2255 motion sets a 1-year time limit on filing one. Four things can start this 1-year clock, but the relevant part here is that the Dimaya decision starts the clock for any inmate that can take advantage of it.

That means that any inmate who is affected by the Dimaya decision, meaning their sentence could potentially be decreased by using it, has until April 16, 2019 in order to file a motion to “Correct a Sentence” before they are no longer eligible to do so.

Contact Us To Find out How PCR Consultants Can Help

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

  1. because the statute allowing this is found in 28 U.S.C. §2255 []

What happens after sentencing?

Post-Sentencing in a Federal Criminal Case

Now what?

Now a defendant can feel like they are blowing in the wind without an advocate to guide them through this difficult period. Many prison consultants make a lot of money just telling people what to expect when they get to prison. We do that, too, but more importantly there is a need for somebody to help make the transition from defendant to inmate.

This transition starts well before the sentencing hearing. At sentencing, a defendant’s lawyer asks the judge to recommend a specific prison for “placement” of the defendant within the Bureau of Prisons. If that recommendation is appropriate, the BOP rarely goes against a judicial recommendation. If not, the BOP can send an incoming inmate wherever it wishes. The lawyer’s request is rarely based on a working knowledge of the Bureau of Prisons (BOP) or how the defendant will actually be seen by it. Usually it’s a gut feeling. A prediction that the lawyer has based on prior clients and their criminal history.

More information about recommendations is available at the bottom of this page.

Bad move. The BOP has a dozen different reasons why an inmate will qualify for a security level that is one-higher than (s)he would normally go. It’s a minefield that takes knowledge, practice, patience, and a knack for bureaucratic red-tape to navigate.

That’s us! We can accurately predict the security level a defendant will be classified as, show a list of prisons within the surrounding states which house that security level, and then make an APPROPRIATE recommendation for our client based on proximity, treatment needs, and programs offered. These factors are constantly changing from year to year, which is why this specialty is necessary.

For additional facts about pretrial, see a primer article about it here.

Contact Us for a Free Consultation

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Place of Incarceration

If you take a plea bargain, the main concern of the pre-incarcerated is the location they will spend their time. What institution is better than the rest? Which is closest to home? These questions are the most basic and most frequently asked. Your sentencing judge can make a recommendation to the BOP for your placement. However, many times this recommendation is not followed. Why?

The BOP has its own policy of classifying each inmate to a specific institution and level of security. The problem is that most lawyers and judges make no effort to determine exactly what yours should be. They have a very good idea, but are often wrong.

If your judge recommends you to an institution that does not fit their criteria, the BOP will then assign you to wherever it sees fit, no matter the distance from home. However, according to BOP statistics, if a judge makes a valid recommendation, it is followed over 80% of the time. PCR Consultants can do a BOP compliant work-up on each client, match that work-up with BOP institutions that fit your needs, and give your attorney and sentencing judge the proper institution for you.

Various institutions have programs that can take up to a year off sentence time if completed plus six months to a year in a half-way house. Finding the right institution for you can mean 18-24 less months spent in prison. Up to 2 YEARS off!

Contact PCR Consultants as early as possible to affect as much of this process as you can.

28 U.S.C. 2255 Example – A Double Edged Sword

When it Works, Sometimes it Doesn’t

In our continuing exploration of 28 U.S.C. §2255 cases, the practice of federal habeas appeals never ceases to be amazing. And confusing.

Take, for instance, the case of Howard Handa.1 In this case, defendant Handa was sentenced for possession with intent to distribute methamphetamine in violation of 21 U.S.C. §841(a)(1) and use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. §924(c).

In 1990 Bailey was sentenced for these crimes, then filed a §2255 petition after the Supreme Court made it’s landmark decision in Bailey v. United States in 1995. This case stated that simply because the defendant had access to a firearm does not necessarily mean that a gun was used during the commission of a crime.

This was the case with defendant Handa.

Note: this was 5 years after his original sentencing, which would normally be time-barred from being accepted. Except that prisoners have 1 year from any landmark (Supreme Court or Appeals Court) decision that could change the outcome of their sentences.2

Handa argued, successfully, that the gun found in his car when he was committing drug crimes was not loaded, and therefore a conviction for “Use of a firearm in relation to a drug trafficking crime” did not apply after the Bailey decision. He was right and his §924(c) was thrown out. Then things turned south for Handa.

Two Ways to Sentence

Before we go any further in this story, lets take a look at some procedure. This will be short, but important.

At the time of indictment the prosecutor had two choices of how to change Handa with his crimes.

  1. S/He could charge the drug crime only and enhance that sentence using the guidelines manual for the possession of a gun; or
  2. S/He could charge the drug crime and the gun crime separately.

The prosecutor in Handa’s case chose the second way, and therefore the judge sentenced Handa for both crimes together, as a “package deal”. The reason this matters will become obvious very soon.

Handa’s Re-sentencing

So Handa won. His §2255 was successful and the §924(c) charge for using a gun during his drug crimes was thrown out. Time for a victory dance, right? Wrong.

The government (prosecutor) then moved to have Handa re-sentenced using option #1 above, since option #2 was now not an option at all. Adding the sentence enhancement for the gun would increase Handa’s total original sentence, even with half of the number of charges at sentencing. If this sounds like the prosecutor wanting to have cake and it it too, you’re not wrong.

The district court, citing lots of Circuit precedent, said it had no authority to increase the original sentence beyond what it already had sentenced Handa to. But that victory, too, was short-lived. It it’s decision on the matter, the 9th Circuit said that the district court could re-sentence Handa because the “package deal” was now “unbundled”. Bad news for Handa, even with a victorious §2255 motion.

Takeaway: Be careful what you wish for, you just might get it.

  1. United States v. Handa, 122 F.3d 690, (9th Cir. 1997) []
  2. The normal tolling limits for filing is 1 year after the latest of four events. For a full discussion of when the appropriate time to file a 2255 is, go to our main page on the subject []

2255 Motion to Vacate or Set Aside Sentence

How to file a §2255 Motion?

 

**Update**

For all questions and issues concerning the recent Supreme Court decision in Sessions v. Dimaya, and how that could reduce sentences for current federal inmates who have otherwise exceeded their 1-year window, please click here.

This is a very big question to answer, but the question that needs to be answered first is, “Can and should I file a Title 28 U.S.C. §2255 Motion?”

Again, this is a big question, but it is just as important as how to file. A motion of this type is sort of an appeal, without being a direct appeal. It is a collateral attack on the sentence of incarceration itself for constitutional issues.

First, only federal inmates can file one. The normal course of criminal cases in the federal criminal system is a direct appeal. Second, when the direct appeal didn’t work, was never filed, doesn’t have the ability to work, or simply doesn’t meet the needs of the defendant, a §2255 is the way to go.

In order to be eligible and qualified to file one of these types of appeals, a few criteria need to be met:

  1. Only federal inmates may file;
  2. Complaints cannot be made if they could have been made on direct appeal;
  3. Complaints must be an attack on the sentence itself, not issues related to confinement (such as RDAP acceptance, placement in halfway house, or holdings in Solitary/SHU);

To answer any questions you have about how to file a 2255 motion, give us a call for a free initial consultation: (480) 382-9287

Issues for Direct Appeal

For direct appeals, there are a number of issues that can be brought up. This should be discussed first, before a discussion of the issues that can be raised on 2255 filings. It’s a good way to separate the two.

For a direct appeal there are many issues that can generate a successfully filed appeal. For starters, if a sentencing judge misapplies the guidelines manual by adding or subtracting points for issues not stipulated in a plea agreement, a direct appeal is the way to go. Second, if the prosecution has withheld exonerating evidence, a direct appeal is the way to go.

Basically, mistakes in the administration of justice during an original sentencing or trial are the only issues that have merit on direct appeal. As long as the defense attorney did their job well during the original criminal penalty phase, this is usually sufficient.

IMPORTANT: Issues on direct appeal must have been raised at the district level already, but decided wrong. Appeals courts will not listen to new arguments, only ones that have been already raised at the court below them.

Issues for §2255 Motions

It is a sad fact that most federal criminal defendants cannot afford to hire adequate legal representation for themselves when charged with a federal crime. A vast majority of federal defendants are assigned a public federal defender to represent them.

Federal defenders are a amazing at their jobs, usually. However, they also have a case-load that is MUCH larger than privately hired lawyers and will often make errors or be ineffective because of it. It cannot be stressed enough that great lawyers can make big mistakes when they are overworked, and no lawyer is more overworked than a federal public defender.

With that out of the way, one of the triggers that is most often used for the basis of §2255 filings is the ineffective assistance of counsel.

**A Good Example**
One client we had in early 2017 was eligible and appropriate for a reduction in offense level points because he was a small pawn in a large criminal fraud conspiracy. A “minor role” adjustment is ready and available in the Sentencing Guidelines Manual for defendants just like him. Unfortunately, this adjustment is applied very sparingly in some districts, and liberally in others.

Our client’s lawyer did not mention or fight for this adjustment, which would have been totally appropriate and would have shaved a year or two off of his sentence. So here is where a 2255 works well, and for the following reasons:

  1. The client’s lawyer failed to argue for this adjustment at original sentence, and was therefore ineffective;
  2. The sixth amendment in the Bill of Rights guarantees effective counsel, so this issues is a constitutional one, meaning a §2255 is the right course to take;
  3. The issue could not be brought up on direct appeal because it was not raised at the original sentencing hearing; and,
  4. The issue is timely because, last year, the Sentencing Commission recognized that this adjustment was being applied unevenly between the districts and issued a clarifying amendment to encourage a more even application, triggering a “new evidence” type of claim for our client.

There are far too many issues that could trigger a §2255 to be successfully argued and accepted by the district court of sentencing, so we won’t make a big list here. However, know that anything from a sentence that goes above the statutory maximum allowed by law, or issues that should have been raised during the original prosecution by the defense counsel, but was not, are all covered under the §2255 umbrella.

To answer any questions you have about issues that can trigger a successful 2255 motion, give us a call for a free initial consultation: (480) 382-9287

How We Work

PCR Consultants is a document preparation company. We prepare solid documents that our clients can use to file for all sorts of relief in the federal criminal justice system. Anything from §2255 Motions to Requests for Early Release from Probation.

We aren’t lawyers, and we are not a law firm. That means we don’t represent our clients in court, and cannot file for them. What we do is write killer documents that will make the defendant HEARD by the district court, and include with them an application for the appointment of defense counsel.

Inmates are not guaranteed free defense attorney’s as a right during the process of a §2255, this is to protect the federal defender’s office from being inundated with work in this area. Most of these motions that are filed have little to no merit, or are dismissed for various reasons (such as the ability to raise the issue on direct appeal or no standing to argue new constitutional law in a habeas proceeding).

However, once a judge grants an evidentiary hearing on a §2255 that is found to have merit, appointment of counsel is mandatory (according to Federal Rules Governing §2255 Procedure 8(c)). Our service comes as a package deal, we write:

  1. The originating motion, supplemented with the district’s own forms (if required);
  2. A motion for an evidentiary hearing if the judge finds merit in the request;
  3. (Optional) A motion to proceed as indigent (In Forma Pauperis); and,
  4. A motion for the appointment counsel if the motion for evidentiary hearing is granted.

To answer any questions you have about how we work with clients to write a 2255 motion, give us a call for a free initial consultation: (480) 382-9287

What Happens After the Motion is Filed

After the documents are filed, we’re hands-off. Once they are filed, a chain of events will occur. It starts with the original sentencing judge, who will examine the motion for it’s merits and either dismiss the motion or order the government to file a response.

After the government responds, the defendant might want to file a rebuttal to the government’s arguments. This might be allowed under local criminal rules, or it might not. If not, the rebuttal must be submitted before the Court orders or it won’t be considered at all. Alternatively, the defendant can file a motion for leave to reply, which will give him/her more time to formulate a response.

Now is the time the judge will either grant or deny the defendant and the relief they’re seeking. In cases where facts are in dispute, the Court can grant an evidentiary hearing where, as was discussed earlier, a judge is required to appoint counsel for defendants who cannot afford one of their own.

Time Limits

Unlike direct appeals, which are required to be filed within 14 days (usually) after the pronouncement of a sentence, a §2255 Motion can be filed within a 1 year time period. That is, the defendant/inmate has to file this motion within one year of the latest of four events:

  1. The date of final judgment;
  2. The date any removal of obstacles to filing the motion by government action in violation of the constitution were removed;
  3. The date where the Supreme Court rules on a case which triggers an applicable argument to the defendant/inmate;
  4. The date where supporting facts could have been discovered through research.For clarification, in #1 above, a judgment becomes final when it is pronounced or when any direct appeal to that judgment was denied. So if the Supreme Court refuses to hear an appeal, then the date of final judgment is the date that the Supreme Court petition for hearing is denied.

To answer any questions you have about how court procedures work after filing a 2255 motion, give us a call for a free initial consultation: (480) 382-9287

One Shot

Defendants only get one shot at filing a §2255, except in rare cases where new evidence is found, or the Supreme Court makes a startling ruling that changes the process of similar cases. Many, many inmates get help from other inmates they are incarcerated with to file a motion like this. Some are very good, but most times this is a total waste of the one shot a defendant gets at filing a motion like this.

The moral of this story?

More Sentence Commutations By Obama This Week

Sentence Commutations for Drug Offenders

Obama: Don't be Stingy with Sentence Commutations

Obama is stingy with sentence commutations

Its a sad fact that Obama has pardoned and commuted less sentences in his presidency than any other president in modern American history. In a positive recent action, Obama issued 22 sentence commutations to federal inmates serving time for drug-related crimes.

These 22 sentence commutations nearly double the number of these actions that he took in the first three-quarters of his presidency. In an article from The Atlantic, snarkily titled, “Obama Offers Commutations to 22 of 209,155 Federal Prisoners,” David A. Graham delves into the good and bad news surrounding these commutations.

Here’s How that article gets going:

For opponents of the War on Drugs—a group that seems to be growing—and those who think the U.S. incarcerates too many people, Tuesday brought some good news and bad news.

The Good News: President Obama has announced that he’s issuing commutations to 22 individuals. They all share convictions for drug offenses; eight would have died in prison if not for clemency.

The Bad News: As The Huffington Post notes, that more than doubles the number of commutations and pardons Obama has issued through the first three-quarters of his presidency. As my colleague Matt Ford noted in December, Obama has been stingy with his mercy, even by the standard of recent presidents, who have used their power more infrequently (though George W. Bush issued only 11 commutations over two terms). Ron Fournier also wrote an excellent analysis of Obama’s pardons in 2013.

Commutations versus Pardons

Sometimes these two words get used interchangeably, and their meanings get lost, so lets clarify. A presidential pardon comes to ex-cons who are out of prison and want their crimes wiped off their criminal record. Pardons usually come at the end of a president’s term to wealthy donors who have no other criminal history besides the one federal conviction to which the pardon is being requested. Translation: pardons are for free men who want to get rid of their criminal record.

Commutations are a different animal. Sentence commutations don’t take away the underlying conviction, it only erases the remaining sentence so an inmate can go free immediately. The 22 people who received sentence commutations on Tuesday would have already been free had they been sentenced under current sentencing guidelines, so these commutations aren’t controversial at all.

A Step in the Right Direction

Obama is to be applauded for his actions, while still encouraged to do more. As the title of the Atlantic article points out, over 200k inmates are still incarcerated in the federal Bureau of Prisons. Considering America has about 5% of the world’s total population, but 25% of the world’s prison population, Obama could do much more to leverage his pardon and commutation power to affect a lot of change.

Sentence Commutations are a good start, though.

Marijuana Legalization, Coram Nobis, and Federal Felonies

Legalized Pot

An interesting question arose for PCR Consultants the other day. With the growing trend the United States these days to legalize pot, what would happen if the federal government actually gave up the Weed branch of its War on Drugs.

Plenty of people believe that locking up citizens in the US for simple Marijuana possession, especially non-violent offenders, is a waste of taxpayer money. Federal felonies can lock up these offenders for decades, given a sufficiently long rap-sheets to justify large sentencing enhancements.

The landscape of Marijuana legalization has changed drastically over the last few years. In 2010, California nearly passed a ballot measure that would have decriminalized normal possession of consumable Cannabis. From SF Weekly writer Chris Roberts:

Buoyed by Oaksterdam University founder Richard Lee’s cash and energy, Proposition 19 — which would have legalized possession of up to an ounce of pot for adults 21 and over, and allowed cultivation of small gardens — lost in November 2010. It garnered a historic 4.6 million votes, or 46.2 percent of ballots cast. Following the loss, Lee declared on election night that legalization was inevitable, and that legalization would return in 2012 “stronger than ever” with a new ballot measure.1

What would happen, then, if pot was legalized? Would non-violent federal felonies for Marijuana crimes be erased, and the offenders relieved of their weed-based criminal record?

Maybe, but then again maybe not.

United States v. Skilling

To explore this issue further, we look at Honest Services Fraud and CEO-turned-convict Jeffrey Skilling. What, you may be wondering, does a high-profile-former-Enron-CEO have to do with weed?

Skilling took his federal felony to the US Supreme Court, who decided that some of what Skilling did was not actually a crime. This was a groundbreaking restriction on the application of Honest Services Fraud, and enough to call into question plenty of felonies that stood upon a broader definition of this type of fraud. In effect, many inmates were incarcerated for what may not be a crime any longer.

One of Illinois’ incarcerated former governors2 seized upon the Skilling decision to try and spring him from federal prison. Crime in the Suites reports on this (unsuccessful) attempt:

The Supreme Court’s June decision in United States v. Skilling doesn’t give former Illinois Gov. George Ryan a “get out of jail free” card, a U.S. district judge has ruled.

Last August, Ryan filed a petition under 28 U.S.C. 2255, which allows a federal prisoner to challenge his conviction and try to have it set aside if it was imposed in violation of law. His lawyers pointed out that Skilling made a substantial change in federal fraud law, rejecting the concept of “honest services” fraud in cases other than “paradigmatic cases of bribes and kickbacks.”

Judge Pallmeyer, in a detailed 59-page opinion, turned aside all of Ryan’s arguments. The “conduct for which [Ryan] was convicted – steering contracts, leases, and other governmental benefits in exchange for private gain – was well-recognized before his conviction as conduct that falls into the ‘solid core’ of honest services fraud,” the judge wrote, noting that this conduct was exactly what the Supreme Court said in Skilling was the “proper target” of the “honest services” law.

Coram Nobis

On the other hand, if what you did falls exactly under Skilling, you have a case. Nicholas Panarella was convicted of exactly the type of crime that the Skilling ruling said was no longer criminal. Matt Mangino reported on that case this way:

U.S. District Judge Mary A. McLaughlin ruled that Nicholas Panarella, Jr., convicted in a political corruption scheme, is entitled to a “writ of error coram nobis” to vacate his conviction based on an honest services wire fraud scheme, according to The Legal Intelligencer.

Judge McLaughlin ruled that Panarella’s conviction is no longer valid in light of the U.S. Supreme Court’s 2010 ruling in Skilling v. Untied States, which significantly narrowed the scope of the honest-services-fraud statute.

“Where a person is convicted and punished for conduct that is not a crime, such circumstances constitute the sort of fundamental error that may warrant coram nobis relief,” McLaughlin wrote.

McLaughlin said there was “no dispute that Panarella was charged solely with the undisclosed self-dealing theory that was invalidated by Skilling”, reported the Intelligencer. As a result, Panarella’s conviction “was predicated solely on conduct that is no longer a crime.”

What it all Means

In one case above, the underlying conduct of former Governor Ryan did not become lawful from the Skilling ruling. In the other, the Writ of Error Coram Nobis was used successfully when the underlying conduct of that person was declared “not illegal”.

So many federal felonies are out there for Marijuana that there is no one-size-fits-all answer to the question posed at the beginning of this article. If Marijuana is de-criminalized at the federal level, a great many federal prisoners could be eligible for having their convictions thrown out

  1. Marijuana Legalization Effort Fails in California, Thanks to Money and the Feds []
  2. and there are two: Ryan and Blagojevich []

Opportunity After Federal Prison

The United States Attorney for the District of New Jersey had some interesting comments about community release after incarceration. Normally, the American standard of criminal justice involves putting away the bad guys. After that, the narrative seems to stop.

Unfortunately for that narrative, and fortunately for defendants and inmates, nearly everybody that goes to prison gets release. What happens then? Most don’t know.

In early July, 2014 the United States Sentencing Commission released and confirmed their new drug guidelines that will not only make drug sentences shorter, but apply them retroactively (eventually)1.

Below is an excerpt from an opinion article written by the above-mentioned US Attorney regarding opportunities for inmates after they get released, but the entire piece entitled “Ex offenders get time, now they need opportunity” is worth a full read.

Every year, my office prosecutes several hundred defendants who have violated criminal laws passed by Congress. For most of those defendants, a term in federal prison is warranted. Whether they are public officials who betray their oaths, predators who threaten the safety of our neighborhoods and our children, or thieves who cheat the health care system, investors or the government — incarceration is the appropriate punishment.

But prison is usually not meant to last forever. More than 95 percent of federal prisoners will be released after serving their sentences. Altogether, 700,000 federal and state prisoners are released every year, along with millions more who stream through local jails.

Most return to their communities, trying to put their lives back together and avoid the pitfalls that got them in trouble. Bearing the stain of their convictions, they compete for jobs, look for housing and seek educational opportunities.

A staggering number don’t succeed. Nationally, two-thirds of people released from state prisons are arrested again; half of those will end up back inside. Forty percent of federal prisoners return to jail in the first three years.

This level of recidivism is unacceptable. Offenders, their families and their communities are devastated by it. Public safety suffers for it. And with more than $74 billion spent annually on federal, state and local corrections, we can’t afford it.

Prison alone isn’t enough. Any smart law enforcement model prevents crime by supporting ex-offenders. That is why my U.S. Attorney’s Office — along with federal judges, the federal public defender, and the U.S. Probation Office — began the “ReNew” program, a federal re-entry court in Newark. Those leaving federal prison at serious risk of reoffending are invited to participate.

They are closely supervised, meeting biweekly with federal Magistrate Judge Madeline Cox Arleo, our office, and the federal defenders, and more regularly with probation officers. And they are supported in obtaining housing, jobs, education, counseling and legal assistance. My office provides services to the team and participants and supervises research into the program’s efficacy.

This week, the judge will preside over the first graduation ceremony for those who have successfully completed 52 weeks in the program. It is a hugely inspiring milestone for everyone involved, but especially for the graduates reimagining their lives despite great adversity….

Recently, my office launched the New Jersey Re-entry Council, a partnership with acting New Jersey Attorney General John Hoffman, other federal and state agencies, and NGO community members to share resources and ideas.

But there is one more partner we need: you. Finding a job after release is the most important key to success. In a recovering economy, securing a job after prison can be especially difficult. If you have a company that can train or hire our participants, or if you have access to housing, we need to hear from you….

One of every 100 adults in the United States is behind bars. Most will come home. They will have paid their debt and need a chance to support themselves, their families and their communities. We can look at ex-offenders returning to our communities as a risk, or we can help give them that chance. The potential rewards for their lives, for the economy and for our safety are incalculable.

  1. The Sentencing Commission is using a phased and delayed approach to actually releasing inmates early from federal prison []

Obama Clemency Plans for Hundreds of Drug Offenders

The title of this post comes from this Yahoo News article today. A new plan for Obama clemency policy is going to be official. Below is how the article gets started:

 

Barbara Scrivner’s long quest for mercy tests a president’s will — and her own faith

DUBLIN, Calif—Scrawled on the inside of Barbara Scrivner’s left arm is a primitive prison tattoo that says “Time Flies.”

If only that were the case.

For Scrivner, time has crawled, it’s dawdled, and on bad days, it’s felt like it’s stood completely still. She was 27 years old when she started serving a 30-year sentence in federal prison for selling a few ounces of methamphetamine. Now, 20 years later, she feels like she’s still living in the early ’90s—she’s never seen or touched a cellphone, she still listens to her favorite band, the Scorpions, and she carefully coats her eyelids in electric blue eye shadow in the morning.

It’s out there, outside of prison, where time flies.

On a sunny afternoon at a federal prison outside San Francisco last month, Scrivner nervously clutched a manila envelope full of photos of herself and her daughter that she keeps in her cell. As she displays the pictures, Scrivner’s daughter Alannah, who was just 2 years old when her mom was put away, changes from a redheaded, freckled young kid to a sullen teen to a struggling young mom. Scrivner changes in the photos, too. At first she’s a plump-cheeked beauty with chestnut-brown hair, then she’s a bleached-blonde woman in her early 30s, before becoming increasingly gaunt as the years grind on.

Today, she most resembles a 40-something high school volleyball coach, in her grey sweatshirt and neatly brushed-out dark bangs. But instead of a whistle around her neck, Barbara wears a large silver crucifix — though she describes her relationship with God as “complicated.”

“I believe in God,” Scrivner says. “I’m really mad with him.”

Her faith has helped her to try to make sense of what feels like an arbitrarily, even cruelly long sentence for her minor role helping her drug dealer husband. But 20 years behind bars has also tested that faith, and even caused her to question whether her life has any meaning or is worth living.

Read the rest of this great article.

Prosecutorial Misconduct

Today we have a couple of stories from around the country that will interest those searching for some sanity in American criminal justice.

To start, we have a story from the Federal Criminal Appeals Blog. It turns out that the government believes riding in a car with drugs, even if a defendant had no idea drugs were present, is still a crime worth many years in federal prison. The story goes like this: a construction worker (Mr. Tavera) was riding to Tennessee to do a roofing job.

Prosecutor Hides Evidence of Innocence

Tavera’s driver had lots of construction equipment in the back of the truck, including a bucket of nails and a large quantity of methamphetamine below those nails.

The US Attorney for the case was told by the truck driver that Tavera had no idea the Meth was there, but forgot to mention that at Tavera’s trial which ended up netting him over 15 years in prison.

From the story:

AUSA Taylor never told Mr. Tavera’s lawyer that Mr. Mendoza said Mr. Tavera isn’t guilty.

And, as a result, the jury never heard that the only other guy in the car told the prosecutor that Mr. Tavera didn’t know about the drugs.

As the Sixth Circuit said, “Mendoza’s statements to Taylor were plainly exculpatory.”

The Supreme Court has said that the government has to hand over all information that is exculpatory and that if it fails to do that, the prosecution is fundamentally unfair.

Yet, despite that the law is crystal clear on this, the Sixth Circuit notes that “nondisclosure of Brady1 material is still a perennial problem, as multiple scholarly accounts attest.”

The prosecutor, as the Sixth Circuit explained, figured it was Tavera’s fault for not doing a good enough job on defense. However, US Supreme Court history is very explicit that it is the prosecutors job to be forthcoming with any such evidence to ensure a fair trial.

With the deck already stacked so squarely in favor of the prosecution in federal cases, do they really need to act this poorly? The Sixth Circuit decided that this was so clearly unfair, that it ordered a new trial.

How long will this new trial even last with this evidence on the record for a jury to see? My guess: not long.

  1. Any evidence of innocence possessed by the prosecution, known as exculpatory evidence, is required to be turned over to the defense before trial. Brady material refers to evidence of innocence, from Brady v. Maryland, 373 U.S. 83 (1963) []