Wednesday, December 29, 2010

Retroactivity determination available to all courts; Watson right is retroactive

United States v. Thomas, No. 08-8436 (4th Cir. Dec. 29, 2010):

(This case concerns the Supreme Court's ruling in Watson v. United States.  For other blog entries concerning this case, click here.)

Watson v. United States held that a person does not "use" a firearm under § 924(c)(1)(A) when he receives it in trade for drugs.  Although Thomas acknowledges that his § 2255 motion would be untimely if the statute of limitations ran from the date his conviction became final (§ 2255(f)(1)), he argues that his § 2255 motion is timely under § 2255(f)(3) because it was filed within one year of the Watson decision.  The government agreed, but the District Court rejected the claim because the Supreme Court did not make the new rule of constitutional law retroactively applicable to cases on collateral review.

The Fourth Circuit now joins every Circuit to address the issue in determining that the decision to make a new rule retroactive can be made by any lower court, rather than only by the Supreme Court.  Section 2255(f)(3) does not require that the initial retroactivity question be decided in the affirmative only by the Supreme Court.

The Fourth Circuit also holds that the right announced in Watson is a new substantive right which must be applied retroactively to cases on collateral review for purposes of § 2255(f)(3).

Tuesday, December 28, 2010

Walk-away prison escape held not a crime of violence

United States v. Clay, No. 09-4572 (4th Cir. Dec. 8, 2010):

(Although this case does not directly address habeas issues, it likely will spur habeas-based challenges.)

From Fourth Circuit Blog:

Another round in the ongoing saga of whether a prior escape conviction triggers enhanced recidivist penalties.  In this case, the prior conviction was a Georgia conviction for felony escape, incurred at the same time as a conviction for interference with government property.  At issue was whether that escape conviction was a "crime of violence" as defined by the Guidelines, which would enhance the base offense level for Clay's offense of conviction, being a felon in possession of a firearm.  The district court held that it was a crime of violence and applied the Guidelines accordingly.

The Fourth Circuit disagreed and vacated Clay's sentence.  It noted that the Georgia escape statute covered at least three kinds of conduct: escape from a secure facility, failure to return from to custody, and walking away from an unsecured facility.  The parties agreed that the first type of conduct would be a crime of violence, while the other two would not (the court agreed on the third type of conduct, previously an open issue in the Fourth Circuit).  Nonetheless, the Government argued that Clay's conduct fell in the first category because, when the escape conviction was read in conjunction with the interference with government property conviction, it was clear that Clay was shackled and did something to those shackles to effect an escape.  Hence, he escaped from a secure facility.  The court disagreed, holding that the applicable evidence did not necessarily show that inference to be true.  Thus, Clay's sentence was vacated and his case remanded for resentencing.

Determination that "blue light law" is not a crime of violence only applies to career offender analyses

Lyde v. United States, No. 4:17-cr-348, 2010 WL 5173881 (D.S.C. Dec. 15, 2010):

(This case concerns an analysis of South Carolina's Blue Light Law, which the Fourth Circuit found not to constitute a crime of violence.  For other blog entries concerning the fallout from this finding, click here.)

Although South Carolina's "Failure to Stop for a Blue Light" is no longer considered a crime of violence for purposes of the Armed Career Criminal Statute, Petitioner in this case was not sentenced under that statute, 18 U.S.C. § 924(e).  Instead, Petitioner's previous blue light violation increased his criminal history by one point.  The violation was not used to enhance his sentence in any other way.  Accordingly, Petitioner's § 2255 motion must be dismissed.

Wednesday, December 22, 2010

Vexatious conduct earns pre-filing injunction only after notice and opportunity to be heard

Sindram v. Harrington, No. 10-2073 (4th Cir. Dec. 22, 2010):

Federal courts may issue pre-filing injunctions when vexatious conduct hinders the court from fulfilling its constitutional duty.  Before enjoining the filing of further actions, however, the district court must afford the litigant notice and an opportunity to be heard.  When a district court enters such injunction sua sponte, remand is the appropriate remedy.

Challenge to career offender status improper if basis is change in crime's legal classification

United States v. Kelley, No. 3:04-998-CMC, 2010 WL 5140593 (D.S.C. Dec. 13, 2010):

[For a previous discussion on South Carolina's blue light law, see the blog post on Thomas v. United States.]

[For a case with a similar result, see Cooper v. Warden, No. 4:10-2402-JFA-TER, 2011 WL 1113544 (D.S.C. Mar. 28, 2011).]

Defendant was sentenced as a career offender, with one of his two predicate offenses being Failure to Stop for a Blue Light ("FTSBL").  At the time of his offense and guilty plea, such an offense was considered "violent."  At sentencing, Defendant argued that FTSBL should not counted as a crime of violence, but Defendant was overruled.  In Defendant's 2255 motion, he raised an ineffective assistance of counsel argument for failure to research FSTBL and determine whether it was violent.  The Court dismissed the § 2255 motion with prejudice.

Defendant then filed a motion for Reconsideration or to Alter or Amend because he was actually innocent of being a career offender.  The Court deemed it a second or successive § 2255 and thus dismissed it.

Defendant then filed a Petition for Modification and Correction of Sentence.  He argued that because South Carolina classified FTSBL as a misdemeanor, he had been incorrectly sentenced as a career offender.  This was considered a second or successive § 2255, and it was dismissed.

Defendant then filed a Rule 60(b)(6) motion seeking to vacate his sentence on the basis of the holding in Rivers. However, a change in the law subsequent to a final judgment provides no basis for relief under Rule 60(b)(6).  This is, in reality, a second or successive § 2255 motion.

Defendant filed a motion for relief under § 2241, which is actually a § 2255 motion unless Defendant can satisfy the requirements of the savings clause in § 2255.  The fact that relief has become unavailable under § 2255 because of the prohibition against successive petitions does not demonstrate that the § 2255 remedy is inadequate or ineffective.

The Court noted that a § 2241 petition may be appropriate only where the challenge to eligibility stems from factual innocence of the predicate crimes, and not from the legal classification of the predicate crimes.

Fourth Circuit remands for determination of equitable tolling in light of Holland

United States v. Terrell, No. 10-6886 (4th Cir. Dec. 21, 2010):

The district court granted a certificate of appealability to determine the applicability of equitable tolling to AEDPA's statute of limitations.  Since that time, the Supreme Court issued the Holland opinion, which is directly on point.  The Fourth Circuit remanded for further proceedings consistent with Holland.

Monday, December 20, 2010

Fourth Circuit no longer applies Blackwelder's balance-of-hardships test for preliminary injuctions

Jordan v. Zynch, No. 7:10cv00491, 2010 WL 5101109 (W.D. Va. Dec. 8, 2010):

The Fourth Circuit's previously-established balance-of-hardships test (for a preliminary injunction) set out in Blackwelder is no longer applicable.  Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009) (“Because of its differences with the Winter test, the Blackwelder balance-of-hardship test may no longer be applied in granting or denying preliminary injunctions in the Fourth Circuit....”)

Fourth Circuit appears to subscribe to immediate-custodian rule

Hudson v. Cauley, No. 2:03-00242-01, 2010 WL 5109878 (S.D. W. Va. Dec. 9, 2010):

2255 vs. 2241.  A defendant convicted in federal court is obliged to seek habeas relief through § 2255 unless § 2255 proves inadequate or ineffective to test the legality of an inmate's detention.  To qualify for the exception and use § 2241 instead, the following conditions are attached: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.

This petitioner satisfies these three prerequisites.  

Jurisdiction.  The rule governing jurisdiction under section 2241 follows from the 'immediate custodian rule':  a district court properly exercises jurisdiction over a habeas petition whenever it has jurisdiction over the petitioner's custodian.  Nevertheless, appellate decisions indicate that a court's power over a custodian under section 2241 raises jurisdictional issues of the personal, and not subject matter, variety.  Cast as such, waiver principles apply.  (The Court cites cases from the 2d, 7th, 8th, 9th, and D.C. Circuits.)  Thus, the United States can waive a personal jurisdiction question.

The Fourth Circuit has not explicitly resolved this matter, but appears to subscribe to the view that the immediate-custodian rule does not implicate the Court's subject-matter jurisdiction (but, rather, venue rules).

In this case, the Government obliquely references the jurisdictional/venue issue.  Because they did not explicitly challenge this point, the Court would have transferred the petition.  Having not been timely raised, however, the Court deems the defenses waived and the exercise of personal jurisdiction over the Warden appropriate.

The Watson Rule.  In Watson, the Supreme Court said that a person who trades drugs for a gun cannot be convicted for using a firearm in furtherance of a drug trafficking offense.  In this case, however, Petitioner was convicted of possessing, not using, a firearm in furtherance of a drug trafficking offense.  This is not prohibited by WatsonSee United States v. Robinson, No. 08-4276 (4th Cir. Dec. 1, 2010).

Friday, December 17, 2010

Court's renewed determination of "sexually violent person" status restarts statute of limitations

Martin v. Bartow, No. 09-2947 (7th Cir. Dec. 9, 2010) (via The 28 U.S.C. § 2254 Blog):

(This case comes to us from outside of the Fourth Circuit.)

The Seventh Circuit reversed the dismissal as untimely of a Wisconsin state prisoner’s § 2254 petition.  The petitioner in this case is a "sexually violent person" civilly committed in 1996 and subject to annual review of that decision by virtue of a requirement of state law.  As a result of that annual review, "the State decided anew that Martin was a sexually violent person each year since his original commitment."  After unsuccessfully seeking state-court review of the 2005 renewal of the commitment order, the petitioner challenged the state courts' action in federal court by filing a habeas petition.  The district court dismissed the petition as untimely because it had not been filed within one year of the petitioner's initial commitment order.  But the court's characterization of Wisconsin law, coupled with an analogy to Magwood v. Patterson, 130 S. Ct. 2788 (2010), led it to reverse the district court's dismissal.  Because each year the commitment order is issued anew, each year any erroneous determination remediable by federal habeas occurs again, and the petitioner may challenge the new error even if he failed to challenge the old.  Cf. Magwood, 130 S. Ct. at 2801 ("An error made a second time is still a new error.").

D.S.C. grants 2255 relief because blue light law violation is not a crime of violence

Thomas v. United States, Nos. 4:10cv70184-TLW, 4:07cr1427, 2010 WL 5092692 (D.S.C. Dec. 7, 2010):

[GRANT of 2255 Petition.]

Defendant was sentenced as a career offender, with one of his two predicate offenses being Failure to Stop for a Blue Light.  In light of the decisions of Begay v. United States, 553 U.S. 137 (2008), Chambers, and Rivers, the Court finds it appropriate to grant Petitioner's petition, vacate his sentence, and allow him to be re-sentenced in accordance with this opinion.

Those decisions held that a violation of "failure to stop for a blue light" is not a violent crime which may constitute a predicate offense for determination that a prisoner is a career offender.

Interpretations of §§ 2244 and 2255 have equal applicability to one another

Little v. United States, No. 1:04cr380, 2010 WL 5094605 (M.D.N.C. Dec. 8, 2010):

Interpretations of 28 U.S.C. §§ 2244(d)(1) and 2255 have equal applicability to one another.  Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999).

Thursday, December 16, 2010

Who May Be Held?

Robert Chesney, Who May Be Held?  Military Detention Through the Habeas Lens, 52 B.C. L. Rev. (forthcoming 2011) (via SSRN).  Here's the abstract in part:

We lack consensus regarding who lawfully may be held in military custody in the contexts that matter most to U.S. national security today—i.e., counter-terrorism and counterinsurgency.  More to the point, federal judges lack consensus on this question.  They have grappled with it periodically since 2002, and for the past three years have dealt with it continually in connection with the flood of habeas corpus litigation arising out of Guantanamo in the aftermath of the Supreme Court's 2008 decision in Boumediene v. Bush. Unfortunately, the resulting detention jurisprudence is shot through with disagreement on points large and small, leaving the precise boundaries of the government's detention authority unclear.

The survey concludes that something close to consensus has emerged regarding the use of group membership as a sufficient condition for detention, but that there may yet be considerable disagreement as to what counts as membership in this context.  The survey also notes that the jury remains out with respect to whether non-member support for certain groups may also function as a sufficient condition for detention.  With respect to variables that can function as constraints on detention authority, the survey shows that the courts have developed consensus against employing certain constraints (such as forbidding the use of detention as to citizens, or in circumstances where the government might have a criminal prosecution alternative).  On the other hand, the question of geographic constraints on the scope of detention authority remains unsettled.

Court recaps burden of proof and standard of review in § 2255 proceedings

Butler v. United States, Nos. 4:10cv70264, 4:09cv74, 2010 WL 5070776 (D.S.C. Dec. 7, 2010):

The Court summarizes the applicable burden of proof and standard of review in a motion under 28 U.S.C. § 2255:

Generally, 28 U.S.C. § 2255 requires Petitioner to prove by a preponderance of the evidence that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law."  This is the proof needed to allege a constitutional error.  "The scope of review of non-constitutional error is more limited than that of constitutional error; a non-constitutional error does not provide a basis for collateral attack unless it involves 'a fundamental defect which inherently results in a complete miscarriage of justice,’ or is ‘inconsistent with the rudimentary demands of fair procedure.'"  Leano v. U.S., 334 F.Supp.2d 885, 890 (D.S.C.2004) (quoting United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir.1999)).

Wednesday, December 15, 2010

District court may choose not to dismiss for lack of jurisdiction after SOL has run

Huntley v. United States, Nos. 3:10cv399, 3:07cr243-1, 2010 WL 505760 (W.D.N.C. Dec. 6, 2010):

(District Court chooses not to dismiss for lack of jurisdiction when statute of limitations of § 2255 has clearly run.)

The Petitioner's motion is untimely.  The Court, however, does not find the motion should be dismissed on this ground and thus does not warn the Petitioner that the motion is subject to dismissal as untimely absent sufficient explanation.

Tuesday, December 14, 2010

Vacatur of felony conviction after unlawful entry not a basis for reducing the reentry sentence

Castellon-Gutierrez v. United States, Nos. WDQ-10-1711, WDQ-09-0282, 2010 WL 4985685 (D. Md. Dec. 6, 2010):

Petitioner was granted a writ of error coram nobis in state court because the plea hearing violated Petitioner's due process rights.  This is because Petitioner was not advised of the elements of the crime of robbery.

Ripeness.  Subsequently, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence for unlawful reentry.  The Government argued that Petitioner's motion was not ripe because the vacatur of the robbery conviction had been appealed.  The Court found that Petitioner's motion was ripe for judicial review because, although the pending appeal favors withholding review, that consideration is outweighed by the hardship that dismissing the claim may cause Petitioner, who withdrew his Fourth Circuit direct appeal so the Court could decide his § 2255 motion

Effect of Vacatur.  The Fourth Circuit has not addressed whether a defendant—who is convicted of a violent felony, subsequently deported, and then who unlawfully reenters the country—may have his sentence reduced if the violent felony conviction is vacated.  Other circuits have addressed this question and held that the plain language of the statute and sentencing guidelines generally preclude a reduced sentence.  The Court in this case sided with these "other circuits" (namely the Seventh, Tenth, and Eleventh Circuits) because the present status of the felony conviction is irrelevant.  The correct inquiry is based on the historical fact that a disabling predicate offense (the violent felony) stood at the time of the present offense (unlawful reentry).  Accordingly, vacatur of the felony conviction, after the defendant's unlawful reentry, usually is not a basis for reducing the reentry sentence.

Sunday, December 12, 2010

Circuit split exists regarding whether right to Brady material extends to guilty pleas

United States v. Gordon, No. 3:04CR00023, 2010 WL 4974567 (W.D. Va. Dec. 2, 2010):

The Brady rule states that suppression by the prosecution of evidence favorable to an accused (both exculpatory evidence and impeachment information) violates due process where the requested evidence is material either to guilt or to punishment.  The rule applies at trial and exists to preserve the fairness of a trial verdict and to minimize the chance that an innocent person would be found guilty.  The guilty plea context, however, does not present the same fairness concerns because the defendant's guilt is admitted.  Accordingly, the prosecution's failure to disclose favorable, material impeachment information prior to a guilty plea does not establish a constitutional violation on which the defendant can invalidate his plea (the Ruiz rule).

In other words, Brady applies to all favorable trial evidence while Ruiz applies only to impeachment information prior to a guilty plea.  A circuit split exists regarding whether whether the Brady right to exculpatory information, in contrast to impeachment information, might be extended to the guilty plea context.  See United States v. Moussaoui, 591 F.3d 263, 286 (4th Cir. 2010).

Defendant may waive double jeopardy rights via guilty plea

Scott v. Beck, No. 1:07CV246, 2010 WL 4939964 (W.D.N.C. Nov. 30, 2010):

A criminal defendant can waive his constitutional protections from Double Jeopardy via a guilty plea.  A defendant who pleads guilty to two counts with facial allegations of distinct offenses concedes that he has committed two separate crimes.  When this occurs, unless it appears on the face of the record that the Court had no power to enter the conviction or to impose the sentence, the Court's inquiry ordinarily is confined to whether the underlying plea was both counseled and voluntary.  If so, Petitioner has no right to a review of the merits of his double jeopardy claim, and it will be summarily dismissed during habeas proceedings.  (Nevertheless, the Court reviewed the merits of Petitioner's claim and found it meritless because the charges did not violate the Blockburger test.)

"Redemptionism" pseudotheory held frivolous

Boggs v. United States, No. 7:10CV00516, 2010 WL 4955837, 2010 WL 4928837 (W.D. Va. Dec. 1, 2010):

The pseudotheory of “Redemptionism” holds, among other things, that the United States has no power or jurisdiction over actual human beings, whose names are spelled with initial capital letters, but only over fictitious entities, whose names are spelled out in all capital letters, as in the caption of court documents.  Boggs argues that since he is a real human being, unlike WILLIAM BOGGS, the allegedly fictitious entity named in this court's proceedings, those proceedings against him were invalid and must be dismissed.  Such argument is nonsensical and completely baseless.

Wednesday, December 8, 2010

Fourth Circuit holds that civil commitment statute comports with due process

United States v. Comstock, No. 07-7671, 2010 WL 4925389 (4th Cir. Dec. 6, 2010):

(This blog previously covered Timms v. Johns, a companion case decided by the Fourth Circuit on the same day.  Comstock controlled the habeas question in Timms, but did not involve a petition for writ of habeas corpus itself.  The statute in question specifically reserves the right to habeas relief.)

[UPDATE on 1/10/2012: The Fourth Circuit announces its panel decision in Timms: http://caselaw.findlaw.com/us-4th-circuit/1590792.html.]

The United States asked the District Court to order the civil commitment of five sexually dangerous individuals pursuant to the Adam Walsh Child Protection and Safety Act.  The District Court refused to do so on the ground that passing the Act exceeded Congress's the authority, a finding with which the Fourth Circuit agreed.  The Supreme Court reversed, holding that the Constitution authorized Congress to enact the statute, and remanded to the Fourth Circuit to determine whether the statute comports with the Fifth Amendment's due process requirement.

Respondents faced two hurdles:  First, a Court must presume that Congress has complied with the Constitution, even when it is alleged that a statute denies procedural due process.  Second, facial challenges—like the one here—are generally disfavored.  Such challenges cannot succeed if a statute has a plainly legitimate sweep.

The Adam Walsh Act requires the Government to prove by clear and convincing evidence three elements.  The first of these three elements is the one challenged.  That element requires the Government to prove that the person sought to be civilly committed has engaged or attempted to engage in sexually violent conduct or child molestation.  Respondents argue that this element must be proven beyond a reasonable doubt because the resulting loss of liberty is comparable in seriousness to a criminal conviction, not the civil label the statute uses.

Three conclusions establish the Court's reasoning for finding in favor of the Government.  First, "the terms 'sexually violent conduct' and 'child molestation' . . . are broad enough to encompass noncriminal conduct such as unlawful, tortious conduct."  Second, the Act applies to individuals against whom all criminal charges have been dismissed for reasons for mental illness or incompetence to stand trial.  Third, the Act has no scienter requirement, as traditional criminal statutes do.  The requisite factual finding under the Act is limited to bad sexual conduct without regard to whether criminal culpability could also be shown.

The Court explained the difference between civil and criminal commitment proceedings.  In civil commitment proceedings, there may be factual issues to resolve, but these factual issues represent only the beginning of the inquiry.  A court, in civil commitment proceedings, must go beyond the beginning of the inquiry and also determine if a person is mentally ill, dangerous, and in need of confined therapy.  When making these determinations, which turn on the meaning of the facts which must be interpreted by experts, the strict, criminal standard of proof is unnecessary.  In contrast, criminal or delinquency proceedings turn on that beginning factual inquiry itself.

Ultimately, the Fourth Circuit held that the statute comports with the Fifth Amendment's due process requirement because of the layers of professional review and continuous opportunities for an erroneous commitment to be corrected.  One of these opportunities is the right to petition for habeas relief or ask the Court to order discharge and, if denied, renew this request repeatedly every 180 days after a denial.

The Fourth Circuit reversed and remanded.

Monday, December 6, 2010

Writ of error coram nobis applicable to criminal judgments

United States v. Hernandez-Monreal, No. 10-4777 (4th Cir.Dec. 6, 2010):

The District Court's finding that a writ of error coram nobis is inapplicable to a criminal judgment was harmless error.  Both the United States Supreme Court and the Fourth Circuit have granted relief to federal prisoners under the writ of error coram nobis.  The error was harmless because the petition was ultimately meritless.

Hernandez-Monreal relied on the rule announced in Padilla v. Kentucky.  However, the record shows that Hernandez-Monreal acknowledged during his Rule 11 colloquy that his plea could make it impossible for him to stay in the United States legally.

The Court notes that nothing in Padilla makes it retroactively applicable to cases on collateral review.

[UPDATE:  The Third Circuit announced that Padilla applies retroactively on collateral review.  See United States v. Orocio, No. 10-1231 (3d Cir. June 29, 2011).]

[8/30/2011 UPDATE:  The Seventh Circuit announced that Padilla does not apply retroactively.  See Chaidez v. United States, No. 10-3623 (7th Cir. Aug. 23, 2011).]

Statutorily mandated evidentiary hearing required for the civilly committed before habeas eligible

Timms v. Johns, No. 10-6496 (4th Cir. Dec. 6, 2010):

[UPDATE on 1/10/2012: The Fourth Circuit announces its panel decision in Timms: http://caselaw.findlaw.com/us-4th-circuit/1590792.html.]

The Adam Walsh Child Protection and Safety Act, 18 U.S.C. § 4248, provides for the civil commitment of sexually dangerous persons in federal custody for treatment following the expiration of their federal prison sentences.  The Eastern District of North Carolina found the statute unconstitutional—and the Fourth Circuit agreed—on the ground that Congress acted ultra vires.

Timms was held pursuant to the Adam Walsh Act.  He petitioned  for a writ of habeas corpus, which the District Court issued him.  The Fourth Circuit granted an emergency motion to stay Timms's release.  One and a half months later, the United States Supreme Court reversed the Fourth Circuit, holding that the Necessary and Proper Clause authorized Congress to enact § 4248.

On remand, the Fourth Circuit vacates the District Court's grant of habeas relief and remands with directions to dismiss the habeas petition without prejudice.  It does so on the ground that Timms did not exhaust alternative remedies available to him.  This is because Timms pursued a habeas remedy instead of proceeding with the statutorily-mandated evidentiary hearing under § 4248.  Furthermore, the Fourth Circuit finds that Timms's situation does not rise to the level of an "exceptional circumstance" warranting the exercise of habeas jurisdiction.

Actual innocence is basis for equitable tolling of SOL

This one comes to us from outside of the Fourth Circuit. For a discussion on the circuit split on this issue, see the blog post here.

Lopez v. Trani, No. 10-1088 (10th Cir. Dec. 6, 2010) (via 28 U.S.C. § 2254):

[August 18, 2011 Update:  For the Ninth Circuit's en banc opinion on the matter, see Lee v. Lampert, No. 09-35276 (9th Cir. Aug. 2, 2011) (en banc))].

The Tenth Circuit held that a federal habeas petitioner seeking equitable tolling on the ground that he is actually innocent need only satisfy the actual-innocence standard of Schlup v. Delo, 513 U.S. 298 (1995), without also establishing cause for the late filing.

Friday, December 3, 2010

Government's violation of state law provides no federal habeas relief

Boger v. Young, No. 7:10cv175, 2010 WL 4861616 (W.D. Va. Nov. 23, 2010):

A state inmate challenging his conviction as a violation of state law is not entitled to federal habeas relief.  This extends to petitioners who challenge not only their original conviction or incarceration, but also revocation of good-time credits.

In this case, Boger challenged the Virginia Department of Corrections's administrative policy that requires inmates to pay $12 to cover the cost of obtaining their birth certificates as a part of reentry planning and preparation.  According to Boger's interpretation of Virginia law, the VDOC is responsible for paying all fees that are necessary to obtain the required documents.  He refused to pay the fee even in the face of losing good-time credit and having his good-time classification level unfavorably increased.  Boger was charged with refusal to participate in reentry planning or preparation and was found guilty following a hearing, which resulted in a less advantageous good-time classification level and the loss of 90 days of accumulated good-time credit.

Boger's federal habeas claim was nothing more than a claim that the revocation of his good-time credit and the increase of his good-time classification level was in violation of Virginia law.  Accordingly, his petition was dismissed.

Attorney Error & AEDPA

Marni von Wilpert, Holland v. Florida: a Prisoner's Last Chance, Attorney Error, and the Antiterrorism and Effective Death Penalty Act's One-Year Statute of Limitations for Federal Habeas Corpus Review, 79 Fordham L. Rev. 1429 (2010).  Here's the abstract, via SSRN:

When should a prisoner be held accountable for his attorney’s negligence or misconduct?  Since the mid-1990s, courts throughout the nation were deciding this question, after a growing tide of attorneys failed to meet the Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations when filing federal habeas corpus petitions on behalf of their incarcerated clients. In Holland v. Florida, the Supreme Court decided once and for all when a prisoner would be given another chance to file his habeas corpus petition through the doctrine of equitable tolling when the only reason his petition was late was the fault of his attorney.  This Comment explores the issues raised by the Holland decision.  In doing so, this Comment analyzes the principles of agency law and professional responsibility—the foundations of the attorney-client relationship—and raises questions as to whether these principles are properly applied to incarcerated clients in the post-conviction context.  This Comment ultimately concludes that while Holland was properly decided, the Court misapplied agency law to support its decision and did not go far enough in extending the protection of equitable tolling to all prisoners who have been turned away from the courts because they detrimentally relied on their defaulting attorneys.

Thursday, December 2, 2010

Time served in federal custody pursuant to writ ad prosequendum isn't credited toward federal sentence

United States v. Owens, No. 1:08cr25, 2010 WL 4823103 (W.D.N.C. Nov. 22, 2010):

Defendant was indicted on federal charges while he was in state custody.  Upon the indictment, he was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum.  A prisoner detained pursuant to a writ ad prosquendum is considered to remain in the primary custody of the first (state) jurisdiction unless and until the first sovereign relinquishes jurisdiction over the person.  The receiving sovereign (the federal government) is considered simply to be "borrowing" the prisoner from the sending sovereign.  Thus, any time spent in federal custody pursuant to a writ ad prosequendum is credited toward his state sentence, not his federal sentence.

Writ of audita querela unavailable where postconviction relief is otherwise available

United States v. Brown, No. 1:99cr75, 2010 WL 4818013 (W.D.N.C. Nov. 22, 2010):

Defendant moved pursuant to the ancient writ of audita querela claiming that he is not actually the person named in the indictment because his identify was stolen.  The writ is not available to a federal prisoner where postconviction relief would be cognizable pursuant to 28 U.S.C. § 2255.  Defendant may not avoid AEDPA's requirements for filing a second or successive § 2255 motion by filing a petition for a writ of audita querela instead.

Request for appeal must be unequivocal

Houston v. United States, Nos.3:09cv223, 3:07cr196, 2010 WL 4818097 (W.D.N.C. Nov. 22, 2010):

The Fourth Circuit has held that an attorney's failure to file a notice of appeal, when requested by his client to do so, is per se ineffective assistance of counsel.  Prejudice is presumed irrespective of the merits of the appeal or a waiver of appellate rights.  However, such request to file an appeal must be unequivocal.

The Western District of North Carolina held the following evidence not to satisfy the requirement of unequivocalness:
(1)  Petitioner's affidavit:  "When I questioned my attorney as to filing an appeal, he stated that it would not be in my best interest to appeal the sentence."

(2)  Petitioner's sister's affidavit:  "When I questioned my brother's attorney about appealing my brother's sentence, he stated, 'I am truly sorry, there is nothing else I can do, because it would not be in your brother's best interest to do so.'"
Viewing this evidence in the light most favorable to Petitioner, the Court held that this did not satisfy the requirement that the Petitioner make an unequivocal request.  Accordingly, the Court did not hold an evidentiary hearing on this issue.

Monday, November 29, 2010

No constitutional right to a properly licensed prosecutor

Woods v. United States, Nos. 1:09CV917, 1:06CR189-2, 2010 WL 4746138 (M.D.N.C. Nov. 16, 2010):

Woods moved pursuant to 28 U.S.C. § 2255 because, inter alia, the prosecutor was not properly licensed to practice law—his license was suspended.  The Middle District of North Carolina sides with many other districts (but not the State of Illinois) in holding that there is no constitutional right to a properly licensed prosecutor.

Additionally, the Court notes that a significant question exists as to whether an "actual innocence" exception to AEDPA's statute of limitations exists.  Compare Souter v. Jones, 395 F.3d 577, 599 (6th Cir.2005) (recognizing an actual innocence exception), with Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir.2005) (actual innocence is not related to timeliness).  If such exception exists, the threshold for meeting that exception is extremely high.  [August 18, 2011 Update:  For the Ninth Circuit's en banc opinion on the matter, see Lee v. Lampert, No. 09-35276 (9th Cir. Aug. 2, 2011) (en banc))].

Court may raise SOL defense sua sponte

Gill v. United States, Nos. 3:10cv564, 3:06cr360, 2010 WL 4718321 (W.D.N.C. Nov. 15, 2010):

When reviewing a petition for a writ of habeas corpus under 28 U.S.C. § 2254, the District Court has the power to raise a statute of limitations defense sua sponte, but it is not required to do so.  Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002).  When this occurs, the District Court ought to provide notice to the petitioner and provide him with the opportunity to respond, "unless it is indisputably clear from the materials presented to the district court that the petition is untimely and cannot be salvaged by equitable tolling principles."  Id.; United States v. Sosa, 364 F.3d 507 (4th Cir. 2004).  Such practice also applies to actions under 28 U.S.C. § 2255.  Sosa, 364 F.3d at 510 n.4.

When (1) the 2255 form prompts a petitioner to explain why the one-year statute of limitations does not bar such motion, (2) petitioner's explanation is neither "extraordinary nor beyond his control," (3) petitioner's response indicates an understanding of the question asked and clearly attributes his failure to file a timely motion to his own inadvertence, and (4) it is indisputably clear that the motion is untimely and does not qualify for equitable tolling, then it is not unconscionable to enforce sua sponte the limitations period against him.

Pending remand generally voids District Court's authority to consider § 2255 motion

Corbett v. United States, Nos. 3:10cv501, 3:07cr144, 2010 WL 4718360 (W.D.N.C. Nov. 15, 2010):

When a United States Court of Appeals remands a case to the District Court for further proceedings, and such proceedings have not yet been conducted, a District Court is without authority to consider the merits of a § 2255 motion unless the remand only requires the District Court to perform a purely ministerial duty involving no discretion.  See United States v. Dodson, 291 F.3d 268 (4th Cir. 2002).

Wednesday, November 24, 2010

AEDPA applies to newly discovered facts, not change in law

United States v. Anderson, No. 3:05-179-CMC, 2010 WL 4721135 (D.S.C. Nov. 15, 2010):

Defendant sought to vacate his conviction on the basis that new case law invalidates his sentence.  He sought to do so pursuant to § 2255(f)(4), which provides that AEDPA's statute of limitations runs from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." This provision applies only to newly discovered facts or evidence, not a change in law.

Moreover, a second or successive § 2255 motion requires permission from the appropriate United States Court of Appeals prior to filing in the District Court. This requirement is jurisdictional.  Defendant's failure to obtain such certification is fatal to his action in the District Court.

Friday, November 19, 2010

Thank the Courts

Linda Greenhouse, Thank the Courts, N.Y. Times Online, Nov. 18, 2010:

Linda Greenhouse asks "how the world would look—or, more precisely, how the United States would look to the world—if the Supreme Court back in the dark winter of 2003-2004 had refused a hearing to the detainees at Guantánamo Bay."

Friday, November 12, 2010

Alien subject to removal order may be held longer than six months if removal is likely to occur sometime in the future

Nabil v. Holder, No. JFM-10-1786, 2010 WL 4485894 (D. Md. Nov. 9, 2010):

The only issue before the district court on Nabil's petition for a writ of habeas corpus concerns the reasonableness of his continued post-removal detention.  Nabil is a native of Afghanistan and completed his federal sentences for a variety of crimes.  Deportation to Afghanistan proved difficult for procedural reasons, and Nabil has been confined for over a year while the governments go through the process of securing the necessary identification documents.

After a removal order becomes final, the United States must detain an alien for up to ninety days.  Although the statute appears to authorize discretionary indefinite detention of a removable alien beyond such period, the Supreme Court has held that post-removal-order detention is implicitly limited to a period reasonably necessary to bring about the alien's removal from the United States and does not permit indefinite detention.  The Court held that an alien may be held for six months, after which the Government must show evidence rebutting the contention that there is no significant likelihood of removal in the reasonably foreseeable future.

In this case, Nabil's six-month period expired on April 22, 2010.  Nabil has offered no evidence, other than the delay in obtaining travel documents from a foreign government, that his removal is not likely to occur in the foreseeable future.  The United States government adequately rebutted the contention by showing that removal is likely to occur—it will just take a while.  Thus, Nabil's petition for a writ of habeas corpus was denied.

Thursday, November 11, 2010

Triggerman: Death Row Inmate is Innocent

Dusty Smith, Triggerman: Death Row Inmate is Innocent, Woodbridge Patch, Nov. 9, 2010 (compliments of Habeas Corpus Blog):

[UPDATE: District Court grants habeas petition.]

In 2002, Justin Wolfe was sentenced to death for ordering Owen Barber to kill Daniel Petrole.  At trial, Barber's testimony was the only direct evidence linking Wolfe to the murder.  Now, Barber is testifying in the Eastern District of Virginia, Norfolk Division, stating that Wolfe had nothing to do with the murder.

According to his new testimony, Barber originally implicated Wolfe only because prosecutors threatened him with the death penalty otherwise.  He came clean in a 2005 affidavit as part of Wolfe's habeas corpus proceedings.  The Eastern District of Virginia found Wolfe's habeas petition barred by the statute of limitations.  The United States Court of Appeals for the Fourth Circuit remanded and ordered the district court to hold an evidentiary hearing, see Wolfe v. Johnson, No. 08-8 (4th Cir. May 11, 2009).  Evidence was heard on November 2 and 3, 2010, and the hearing was continued until November 16, 2010.

Procedural history:  After Wolfe's trial, he filed a direct appeal to the Supreme Court of Virginia, Wolfe v. Commonwealth, Nos. 021872, 022194, 576 S.E.2d 471 (Va. 2003); filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, Wolfe v. Warden, No. 040125 (Va. Mar. 10, 2005); moved for rehearing the state habeas decision before the Supreme Court of Virginia, Wolfe v. Warden, No. 040125 (Va. June 17, 2005); petitioned for certiorari in the Supreme Court of the United States, Wolfe v. True, 545 U.S. 1153 (2005); petitioned for a writ of habeas corpus in the Eastern District of Virginia, Wolfe v. Johnson, No. 2:05-cv-432-RAJ-DEM (E.D. Va.) (filed Nov. 7, 2005); and appealed to the Fourth Circuit, Wolfe v. Johnson, No. 08-8 (4th Cir. May 11, 2009).

Wednesday, November 10, 2010

Ethics violation may be construed as an IAC claim

United States v. Sharp, No. 09-4932, 2010 WL 4386884 (4th Cir. Nov. 5, 2010):

An allegation that an attorney violated a state's rules of professional conduct may be construed as an attempt to make an ineffective assistance of counsel argument.  Of course, the Fourth Circuit's rule is that a claim of ineffective assistance of counsel should be raised pursuant to 28 U.S.C. § 2255 in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.

Tuesday, November 9, 2010

Post Padilla

Gray Proctor & Nancy J. King, Post Padilla: Padilla’s Puzzles for Review in State and Federal Court, 23 Fed. Sentencing Rep. (forthcoming Feb. 2011). Here's the abstract, via SSRN:

This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment.  Issues addressed include:  express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; and other collateral relief.  This draft includes citations to emerging case authority available as of October 28, 2010.

Monday, November 8, 2010

Objections to R&R which restate original claims need not be addressed

Epps v. Cartledge, No. 1:09-2007-RMG-SVH, 2010 WL 4320331 (D.S.C. Nov. 2, 2010):

A district court may only consider objections to a Report and Recommendation that direct the court to a specific error.  Objections which merely restate word-for-word or rehash the same arguments presented in a petitioner's opposition to a motion for summary judgment do not provide the court with objections to address.  A district court judge need not address the same issues twice.

Monday, November 1, 2010

Incomprehensible habeas petition may be summarily dismissed

Brown v. Prince Georges County Police Dept., No. L-10-2845, 2010 WL 4182940 (D. Md. Oct. 25, 2010).

A completely incomprehensible complaint under 28 U.S.C. § 2241 that consists of several running, disjointed sentences, phrases, and nonsensical "buzz words" may be summarily dismissed. Such indecipherable claims do not warrant federal intrusion.

Corporation's right to counsel is limited to the counsel it can afford

United States v. Rocky Mountain Corp., No. 5:07CR58, 2010 WL 4236793 (W.D. Va. Oct. 27, 2010).

How often do you run across a corporation challenging the validity of its guilty plea via a writ of coram nobis? 

Rocky Mountain Corp. maintains that its plea was not a knowing and voluntary plea because of the pressure the government placed on its president, that the fine and forfeiture the court imposed exceeded the amount authorized by controlling statutes and were constitutionally excessive, and that it received ineffective assistance of counsel. The statement of facts detailed a considerable methamphetamine conspiracy, as well as a conspiracy to structure financial transactions and launder the proceeds of the methamphetamine conspiracy through Rocky Mountain.

The Court denied the writ because the corporation could not satisfy three prongs:  (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; . . . and (4) the error is of the most fundamental character.

In the ineffective assistance of counsel claims, the Court stated that a corporation's Sixth Amendment right to counsel distills to two components: (1) its right to choose counsel it can afford, and (2) to the proscription of governmental interference or the application of rules that degrade counsel's effectiveness in ways the Constitution would not tolerate if an individual were charged with an offense. The Court dismissed on the ground that Rocky Mountain's Sixth Amendment allegations do not implicate either of these concerns.

A corporation's Sixth Amendment right in a criminal trial is its right to retain counsel while an individual's Sixth Amendment right includes the right to appointed counsel. Unlike an individual, a corporation cannot have what it cannot afford. A corporation that can be tried in a criminal case without counsel cannot raise the corollary claim that the counsel of its choosing failed to meet Strickland's standard for competence. In sharp contrast to its responsibility to an individual, the government has no responsibility to ensure that a corporation is represented by competent counsel. Consequently, corporate counsel's errors are not imputed to the government.

The Court went on to note that even if it concluded that a corporation's right to counsel parallels an individual's right to counsel, as some courts have held, in this case Rocky Mountain Corp. is still unable to satisfy Strickland's two prongs.

Wednesday, October 27, 2010

Magistrate Judge lacks authority to enter dispositive order without consent

United States v. Browning, No. 10-7059 (4th Cir. Oct. 22, 2010):

A United States magistrate judge only has the authority to enter a final, appealable order on the consent of all parties. 28 U.S.C. § 636(c).  When such consent does not exist, a magistrate judge lacks authority to enter a final dispositive order; a district court must review the magistrate judge’s order or proposed findings and make a ruling.  Otherwise, such non-consented dispositive order is subject to remand.

Fourth Circuit determines correct rule to use when final order is sent to prisoner at old address

United States v. Kemp, No. 10-7024 (4th Cir. Oct. 27, 2010):

When a district court sends a final order to a prisoner at an old address, an untimely appeal of that order should be analyzed pursuant to Fed. R. App. P. 4(a)(6) (permitting a discretionary reopening of time to appeal when moving party did not receive notice of entry of judgment), not Rule 4(a)(5) (requiring excusable neglect and good cause).  However, when it is the prisoner's fault for not updating his address on file, the result may be the same.

Fourth Circuit Habeas Blog Launch

This blog is devoted to covering the Fourth Circuit's rulings concerning 28 U.S.C. §§ 2241 and 2254.  It will also discuss some 28 U.S.C. § 2255 cases.  To the extent that district courts within the Fourth Circuit address novel or interesting issues in this field, those cases will be highlighted, too.

For information on the Second Circuit, see Habeas Corpus Blog, http://habeascorpusblog.typepad.com/.  For the Eighth, Ninth, and Tenth Circuits, see 2254blog, http://2254blog.wordpress.com/.