Thursday, March 31, 2011

District Court requests Fourth Circuit withdraw and reenter its mandate

Lewis v. United States, No, 5:07CR5-01, 2011 WL 1106766 (N.D. W. Va. Mar. 23, 2011):

Petitioner claims that his appellate counsel was ineffective for failing to file a petition for writ of certiorari despite having been directed to do so. The Fourth Circuit addressed the issue of appellate counsel's failure to carry out a defendant's request to file a petition for writ of certiorari in United States v. Smith, 321 F. App'x 229, 233 (4th Cir. 2008), in which it held that Smith's § 2255 motion would be treated as a motion to withdraw the mandate, permitting the earlier judgment to be vacated and re-entered, allowing for the timely petition for writ of certiorari.

This Court agrees that the interests of justice require that the petitioner be given an opportunity to file his petition for writ of certiorari. However, only the Fourth Circuit can recall the mandate. For this reason, this Court advises the Fourth Circuit by this memorandum opinion and order of the petitioner's desire to file a petition for writ of certiorari so that it can take any action it deems appropriate.

No 'actual innocence' argument in statutory tolling, South Carolina presumes

Blakney v. United States, No. 4:06-cr-584-RBH-1, 2011 WL 1113468 (D.S.C. Mar. 24, 2011):

[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))].

While the Fourth Circuit has not expressly ruled that an "actual innocence" exception exists for motions time-barred under either § 2255(f) or § 2244(d), see DiCaprio–Cuozzo v. Johnson, –––F.Supp.2d ––––, 2010 WL 4007622, at *9 (E.D. Va. Oct. 12, 2010), multiple other circuits have concluded that there is no such exception. See Lee v. Lampert, 610 F.3d 1125, 1128–31 (9th Cir. 2010) (concluding there was no actual innocence exception to the AEDPA's statute of limitations); Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir. 2005) (holding that actual innocence "is unrelated to the statutory timeliness rules . . . [and] does not extend the time to seek collateral relief”); David v. Hall, 318 F.3d 343, 347 (1st Cir. 2003) (holding that "defendants who may be innocent are constrained by the same explicit statutory or rule-based deadlines as those against whom the evidence is overwhelming"); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (stating that claims of actual innocence do not "justify equitable tolling of the limitations period"); Flanders v. Graves, 299 F.3d 974, 978 (8th Cir. 2002) (noting that there is no actual innocence exception separate from the usual equitable tolling factors). But see Souter v. Jones, 395 F.3d 577, 599–600 (6th Cir. 2005) (allowing equitable tolling of the AEDPA's statute of limitations based on actual innocence). With there appearing to be no Fourth Circuit authority to support Petitioner's position, the court finds compelling those cases declining to find an actual innocence exception.

[Ed. Note:  The 10th Circuit has also ruled that actual innocence may provide a basis for equitably tolling AEDPA's statute of limitations.  See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citing Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)).]

Wednesday, March 30, 2011

Original Habeas Redux

Lee Kovarsky, Original Habeas Redux, 97 Va. L. Rev. 61 (2011):

The Supreme Court's authority to issue an (inaptly named) original writ of habeas corpus is, paradoxically, perhaps its most exotic form of appellate power. The Court frequently decides habeas cases, but only pursuant to its authority to entertain certiorari petitions from lower courts. Few are even aware that the Court or its Justices may issue an original habeas writ, directing the release of a prisoner, from their own chambers. Such relief has not issued since 1925, and the leading Supreme Court treatise describes the jurisdiction as an anachronism. Until last year, a half-century had elapsed before the Court exercised even its related original habeas power to transfer a petition within the federal judiciary.

In August 2009, by transferring a capital prisoner's original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court's appellate jurisdiction. Faced with particularly strong evidence that Davis did not commit the murder for which he was convicted, the Court exercised its original habeas power to bypass a statutory authorization proceeding and transferred the case to a U.S. district court for merits adjudication. The petition was the first that the Court had transferred under its original habeas power in almost fifty years.

In this Article, Kovarsky argues that Davis is not a blip in an otherwise constant state of original habeas inactivity. The original writ may be in the midst of a renaissance, emerging as a last-resort means of averting wrongful executions.

[UPDATE:  Kovarsky's Article elicited a response from Stephen Vladeck, Professor of Law at American University Washington College of Law.  See Stephen I. Vladeck, The Supreme Court, Original Habeas, and the Paradoxical Virtue of Obscurity, 97 Va. L. Rev. In Br. 31 (2011).]

Court rejects Magistrate's R&R; determines prison lockdown requires equitable tolling

Davis v. Cartiledge, No. 09-cv-3218-RMG, 2011 WL 441889 (D.S.C. Feb. 8, 2011):

Petitioner filed his § 2254 petition approximately fifteen days after the AEDPA statute of limitations ran.  Petitioner claimed he was entitled to equitable tolling of the statute of limitations because his prison was on lockdown.  Generally, prison conditions such as lockdowns are not grounds for equitable tolling.  Burns v. Beck, 349 F. Supp. 2d 971, 974 (M.D.N.C. 2004) (citing Akins v. United States, 204 F.3d 1086 (11th Cir. 2000)).  Nevertheless, the Court determined that Petitioner was entitled to equitable tolling because there was a genuine issue regarding whether prison mailroom was closed and whether Petitioner did not receive essential materials he requested.

Thursday, March 24, 2011

Firearm enhancement element not retroactively applied when precedent decided before conclusion of direct appeal

 Wiggins v. Standsberry, No. 3:10cv298-HEH, 2011 WL 476442 (E.D. Va. Feb. 4, 2011):

The Crime.  Wiggins and three others robbed a bank in Raleigh, North Carolina using a pistol and a sawed-off shotgun.  Wiggins's sentence for the firearms offense was enhanced because the defendants used a short-barreled shotgun, triggering the enhancement provision of 18 U .S.C. § 924(c).

On Appeal & the Circuit Split.  On appeal, Wiggins argued that the sentencing court erred when it enhanced the sentence imposed for the firearms because the Court did not submit to the jury the question of whether a short-barreled shotgun was used.  Wiggins did not raise the issue at trial; thus, the United States Court of Appeals for the Fourth Circuit reviewed the Sentencing Court's enhancement for plain error.  The Court recognized that a circuit split existed regarding whether the enhancement provision was an element of the crime (requiring submission to the jury) or merely a sentencing factor (permitting judicial determination). Nevertheless, the Fourth Circuit concluded that "Wiggins cannot show that the error 'seriously affects the fairness, integrity, or public reputation of judicial proceedings' because the evidence that [Wiggins] used or possessed a short-barreled shotgun in furtherance of the bank robbery was 'overwhelming' and 'essentially uncontroverted.'"

Supreme Court Decides Castillo. Twenty-four days before the Supreme Court denied Wiggins's petition for a writ of certiorari, the Supreme Court issued its opinion in Castillo v. United States, 530 U.S. 120 (2000).  In Castillo, the Supreme Court resolved a Circuit split regarding whether the enhancement provisions of 18 U .S.C. § 924(c) were elements of the crime or merely sentencing factors. The Supreme Court held that the enhancement provisions were elements of the crime which must be proven to a jury.

The Habeas Petition.  Wiggins filed a petition under 28 U.S.C. § 2241 for a writ of habeas corpus, arguing that Castillo required the government to submit to the jury the question regarding whether a short-barreled shotgun was used.  To qualify for § 2241 relief, however, Wiggins had to show that, inter alia, subsequent to his direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which he was convicted is deemed not to be criminal.  Wiggins could not meet this standard because (1) Castillo was decided before his direct appeal ended, and (2) Castillo did not de-criminalize the offense, it merely determined that the offense conduct was a separate aggravated offense.  Accordingly, Wiggins must proceed under § 2255.

Tuesday, March 22, 2011

Fourth Circuit remands for clarification on whether district court granted or denied 2255

United States v. Gardner, No. 10-6037 (4th Cir. Mar. 21, 2011):

The Fourth Circuit recently voted to rehear en banc the case of United States v. Vann, 620 F.3d 431 (4th Cir. 2010), in which a majority of the original panel held that the North Carolina offense of taking indecent liberties with a child was a "crime of violence" for purposes of the Armed Career Criminal Act.

Gardner's prior Virginia conviction for taking indecent liberties with a minor was used to enhance his sentence as a career offender under U.S.S.G. § 4B1.1.  Gardner challenged the enhancement, relying on Begay v. United States, 553 U.S. 137 (2008).  The district court declined to determine whether Begay rendered Gardner's sentence unlawful because the court determined even if Gardner was not a career offender, his sentence was still appropriate.

Although the district court's order states that it is denying Gardner's § 2255 motion, its reasoning could also be interpreted, for practical purposes, as essentially granting § 2255 relief, vacating Gardner’s sentence and imposing a new sentence, albeit the same sentence.  Whether this is the case or not determines whether a COA is necessary to appeal.

Accordingly, the Fourth Circuit vacated the district court's order and remanded to give the distirct cour the opportunity to clarify whether it was in fact imposing a new sentence.

Thursday, March 17, 2011

Transfer, not dismissal, appropriate response to habeas petition filed in wrong venue

Shaw v. United States, No. 09-8186 (4th Cir. Mar. 17, 2011):

Stanleigh Shaw was convicted in the Northern District of Alabama and sentenced to thirty-seven months in prison.  Shaw, incarcerated in a federal penitentiary in North Carolina, filed a 28 U.S.C. § 2241 petition in North Carolina.

The Eastern District of North Carolina determined that the petition should be raised pursuant to 28 U.S.C. § 2241.  The Court, however, declined to construe the petition as such because jurisdiction to entertain such a motion lies in the Northern District of Alabama.  Instead, the Court dismissed the matter without prejudice as an improperly brought § 2241 petition.

Instead of dismissing the petition, the Court should have transferred it pursuant to 28 U.S.C. § 1631 to the Northern District of Alabama.  Such a transfer would serve the interest of justice because, if Shaw were now to file a § 2255 motion in that district, consideration of his claims likely would be barred by the applicable one-year limitations period. See 28 U.S.C. § 2255(f).

In a footnote, the Fourth Circuit mentioned that the District Court performed merely an initial screening of Shaw’s petition.  The District Court made no substantive ruling on the merits of the petition and did not recharacterize it "as the litigant's first § 2255 motion."  See Castro v. United States, 540 U.S. at 377 (emphasis added).  Because there was no such recharacterization, the District Court was not required to give Shaw the notice that Castro otherwise would require.

Wednesday, March 16, 2011

Fourth Circuit denies relief after granting COA

Cousins v. Green, No. 08-8374 (4th Cir. Mar. 16, 2011):

In 2009, the Fourth Circuit granted Petitioner a Certificate of Appealability "COA" regarding his claim of ineffective assistance of counsel.  On review, the Court determined that an attorney cannot be ineffective for failing to investigate the murder with which Petitioner was charged if such investigation would not have revealed the purported exculpatory eyewitness testimony now available.

Tuesday, March 8, 2011

Fourth Circuit holds that Santos rule applies retroatively on collateral review

United States  v. Halstead, No. 09-7442 (4th Cir. Mar. 7, 2011):

In United States v. Santos, 553 U.S. 507 (2008), the Supreme Court of the United States narrowed the scope of the money laundering statute by interpreting the term "proceedings" in 18 U.S.C. § 1956(a)(1) to mean the "net profits" of an illegal gambling business rather than its "gross receipts."  Because this is a substantive rule instead of a procedural rule, the Santos rule applies retroactively on collateral review.

[The Fourth Circuit also remanded to the District Court a case held in abeyance pending this decision.  See United States v. Ranjha, No. 09-8234 (4th Cir. June 10, 2011).) 

Supreme Court resolves circuit split re: whether Rule 35 is collateral proceeding; abrogates Fourth Circuit holding

Wall v. Kholi, No. 09-868, 2011 WL 767700 (U.S. Mar. 7, 2011):

A motion pursuant to the state equivalent of a Rule 35 motion to reduce a sentence is considered part of the collateral review process and therefore tolls AEDPA's one-year statute of limitations.  This holding resolves a circuit split contrary to the previous holding of the Fourth Circuit.  Walkowiak v. Haines, 272 F. 3d 234, 239 (4th Cir. 2001).

Section 2241's "jurisdiction" language refers not to subject-matter jurisdiction; therefore waivable

Kanai v. McHugh, No. 10-6086 (4th Cir. Mar. 4, 2011) (synopsis from Fourth Circuit Blog):

Kanai, a West Point cadet in his final year, sought a discharge from the Army as a conscientious objector.  The Department of the Army Conscientious Objector Board denied Kanai's application on the basis that he failed to demonstrate sincerely-held beliefs entitling him to conscientious objector status.  The Army subsequently relieved Kanai of his duties at West Point; Kanai went home to Maryland and filed a petition for writ of habeas corpus under 28 U.S.C. § 2241.  The district court granted Kanai's petition, and the Army appealed.

In determining whether the district court had jurisdiction to hear Kanai's habeas petition, the Fourth Circuit was presented with a question the federal courts have not yet resolved: where should habeas suits be filed when the petitioner is not in jail? The Fourth Circuit sidestepped the challenge to formally resolve the precise meaning of the phrase, "within their respective jurisdictions," in section 2241(a), finding instead that this statutory language "identifies the proper location of the federal district court in which a habeas petition should be filed," rejecting a subject-matter jurisdiction analysis (in accordance with the Supreme Court's holding in Rumsfeld v. Padilla). Additionally, the Fourth Circuit states that any challenge based on this language is waived if not asserted at the district court. Since the Army did not assert a jurisdictional challenge until its appeal, the Fourth Circuit deemed it waived.

On the merits of whether the Army Board had a basis to deny Kanai's application for discharge as a conscientious objector, the Fourth Circuit decided against Kanai, though it remarked favorably on him as "contemplative, self-reflective, and honest."  The standard of review for the Army Board's decision required the Fourth Circuit to uphold the denial if it were supported by a "basis in fact."  Such a basis exists when "conflicting inferences can be drawn from the same evidence."  The Fourth Circuit held that three members of the Army Board's five-member panel appropriately found that Kanai had not presented sufficient evidence to demonstrate his "moral opposition to all wars."   On this narrow standard of review, it upheld the Army Board's denial of Kanai's application for discharge. 

Thursday, March 3, 2011

State prisoner may not challenge the execution of his sentence under § 2241

Tippett v. McCall, No. 1:09-593-HMH-SVH, 2011 WL 441942 (D.S.C. Feb. 7, 2011):

As a preliminary matter, the court must determine whether § 2241 is the appropriate jurisdictional statute for Tippett to challenge the SCDC's computation of his armed robbery sentence.  The United States Court of Appeals for the Fourth Circuit has not considered the issue of whether a prisoner who is incarcerated pursuant to the judgment of a state court may challenge the execution of his sentence under § 2241.  However, a majority of the circuit courts of appeals that have addressed the issue have held that a state prisoner seeking federal post-conviction habeas relief must proceed under 28 U.S.C. § 2254.  See White v. Lambert, 370 F.3d 1002, 1005 (9th Cir. 2004), overruled on other grounds by, Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc); Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003); James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002); Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001); Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000)But see Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.2000).  The court concludes that § 2254 is the exclusive avenue for Tippett to seek habeas relief and therefore recharacterizes his filing as a § 2254 petition.