Tuesday, July 26, 2011

E.D. Va. notes possibility of Fourth Circuit abrogation

James v. Stansberry, No. 3:10cv380, 2011 WL 2471034 (E.D. Va. June 20, 2011).

[For other blog posts dealing with South Carolina's blue-light law, click here.]

Procedural history.  In 2002, Petitioner was convicted for possession of a firearm by a felon.  Petitioner was sentenced under the Armed Career Criminal Act ("ACCA").  One of the predicate offenses the sentencing court used to sentence Petitioner under the ACCA was a 1995 South Carolina state conviction for failure to stop for a blue light.  South Carolina's blue-light law makes it unlawful for a driver to continue driving when signaled to stop by a law enforcement vehicle.

Petitioner appealed the Court's characterization of him as an armed career criminal because, he argued, a conviction for violating the blue-light law does not constitute a "violent felony."  The Fourth Circuit affirmed his conviction and determined that a violation of the blue-light law did constitute a "'violent felony'" because the law "generally proscribes conduct that poses the potential for serious injury to another."

Petitioner then filed a § 2255 motion on this ground.  The District of South Carolina denied the motion and the Fourth Circuit dismissed his appeal.

Petitioner then filed a petition pursuant to § 2241 for a writ of habeas corpus in the Eastern District of Virginia.  Petitioner raised the blue-light law issue once more.  This Court dismissed the petition for lack of jurisdiction because the petition was actually an unauthorized, successive motion pursuant to 28 U.S.C. § 2255.  The Fourth Circuit affirmed dismissal.

On February 25, 2010, the Fourth Circuit handed down its opinion in Rivers.  In Rivers, the Fourth Circuit applied the Supreme Court's reasoning in Chambers v. United States to determine that a violation of South Carolina's blue-light law could never constitute a violent felony under the ACCA.

Accordingly, Petitioner filed another § 2241 petition.

Current § 2241 petition.  Petitioner currently contends that he is entitled to relief under 28 U.S.C. § 2241 because he is "actually innocent" of his ACCA status. As Petitioner correctly asserts, he did not have the benefit of Rivers when he filed his previous petition in Virginia.  Nevertheless, at that time, the Court assumed arguendo that Petitioner was correct regarding whether a violation of the blue-light law constituted a violent felony.  Accordingly, the substantive change presented in Rivers does not alter the Court's previous analysis.

Even though the law changed, Petitioner cannot avail himself of it.   He must proceed under § 2255, but only if he can show that the conduct for which he was convicted is no longer illegal.  That is, actual innocence applies only where the challenge to eligibility stems from factual innocence of the predicate claims, and not from the legal classifcation of the predicate claims.  Petitioner cannot do so.

Possible Abrogation. In footnote four, the Court mentions Sykes v. United States.   This blog previously covered the possibility of Sykes abrogating Fourth Circuit precedent.  The Court declined to address this issue.

[UPDATE:  The Eighth Circuit in Sun Bear v. United States, --- F.3d ----, No. 09-2992, 2011 WL 2683183 (8th Cir. July 12, 2011) (six-to-five en banc opinion), determined that collateral attacks on an application of the career offender guidelines provisions are not cognizable under § 2255.]

Sunday, July 17, 2011

E.D. Va. exposes uncertainty in statute of limitations analysis

Bolding v. Dep't of Corr., No. 3:10cv660, 2011 WL 2471557 (E.D. Va. June 21, 2011).

In Virginia, a state prisoner may file a state habeas petition in either the state circuit (trial-level) court or in the Supreme Court of Virginia.

A question arises regarding the statute of limitations when an inmate petitions for habeas relief in the circuit court and then appeals the denial of the petition to the Supreme Court of Virginia.  It is settled law that the statute of limitation tolls while the petition is pending with the circuit court.  What happens, however, when the Supreme Court of Virginia dismisses the subsequent appeal because it was not timely filed?  The Eastern District of Virginia recently uncovered that question, and decided not to rule on it.

In Allen v. Mitchell, 276 F.3d 183, 185 (4th Cir. 2001), the Fourth Circuit, adjudicating a North Carolina case, subscribed to the position that "the statute of limitations is not tolled between the expiration of a state appeal deadline and the subsequent filing of an untimely appellate petition."  The Allen Court broke the relevant time periods down:
When a prisoner files an untimely appellate petition during state collateral review proceedings, three periods are relevant to the availability of tolling for the time span between the denial of relief by the lower court and the conclusion of appellate proceedings:  the interval between the lower court decision and the deadline for seeking review (“Appeal Period”); the interval between this deadline and the filing of an appellate petition (“Post Deadline Period”); and the interval during which the appellate petition is under review by the state court (“Review Period”).
The Review Period clearly tolls the statute of limitations if a state appellate petition is properly filed.  The Allen Court decided the issue of whether the Post Deadline Period tolled the statute of limitations.  (It doesn't.)  The question is regarding the Appeal Period.  In Allen, the Fourth Circuit throws it away by saying, "We have already held that the statute of limitations is tolled pursuant to § 2244(d)(2) during the [interval between the lower court habeas decision and the deadline for seeking review of that decision.]"  This suggests that a petitioner's limitations period is tolled for thirty days after the circuit court's judgment, even if the petition for appeal is not filed within that thirty-day period.  This conclusion is supported by the Allen Court's language at the end of its opinion:  "[If] Allen's certiorari petition was [not] timely . . . then the district court must determine when the Appeal Period ended and how much time subsequently accrued against the statute of limitations."  This is the holding of at least three other circuits, and also the practice of the Western District of Virginia at least once.  See Breeden v. Commonwealth, No. 7:05CV00413, 2005 WL 2777281, at *1 (W.D. Va. Oct. 24, 2005) ("Although the Circuit Court dismissed Breeden's state petition on December 18, 2004, the one-year period remained tolled until January 18, 2005, the date on which the time to appeal the dismissal of the petition expired.").

This, however, is not the rule that the Eastern District of Virginia normally follows.  See, e.g., Hines v. Johnson, No. 2:08cv102, 2009 WL 210716, at *2 (E.D. Va. Jan. 28, 2009) (precluding tolling the time between the state's denial of a habeas petition and the ultimately untimely petition for appeal of that decision); Christian v. Baskerville, 232 F. Supp. 2d 605, 607 (E.D. Va. 2001) (same).  The Eastern District of Virginia declined further analysis because an additional thirty days would not be beneficial to the petitioner.

[1/20/2012 Update:  For another North Carolina case addressing Allen, see Arrington v. Stancil, No. 5:11–HC–2018–BO, 2012 WL 125755, at *2 (E.D.N.C. Jan. 17 2012).]

Tuesday, July 12, 2011

New evidence of government misconduct gives rise to federal claim

Williams v. Fahey, No. 3:09CV769, 2011 WL 2443722 (E.D. Va. June 14, 2011).

[This opinion concerns one of the "Norfolk Four." For a brief news story about this case, click here.  For other blog posts about this case, click here.]

On April 9, 2010, Police Detective Ford was indicted for lying to federal agents, judges, and state and federal prosecutors.

This indictment (and subsequent conviction) gave rise to Williams submitting his § 2254 petition.  Williams alleges that Detective Ford coerced Williams's confession to rape and murder.  Williams seeks a stay-and-abeyance of his federal petition so that hey may exhaust his state remedies with regard to this new claim.

Respondent contends that Ford's indictment cannot constitute "new evidence" to support a claim distinct from any claim previously available to Williams.  The Court disagrees.  When evidence not presented to the state court which places a case in a significantly different and stronger evidentiary posture than it was when the state court considered it, that new evidence may support stay-and-abeyance.  Ford's recent convictions lend factual heft to Williams's claim that Ford manipulated the investigation and prosecution against Williams.  Such allegations, if proven, could potentially entitle Williams to habeas relief.

Respondent also contends that the Virginia state courts will reject Williams's new petition because it violates the relevant statute of limitations.  However, interpretation of that statute does not appear to be as straightforward as Respondent suggests.  Not only is the case law unclear, but in the six months that Williams's state habeas petition has been pending in state court, the state court has not dismissed it.  Accordingly, the Court grants the stay-and-abeyance for Williams to pursue his new claim in the state court.

[For the same holding for Williams's codefendant, see Dick v. Fahey, No. 3:10CV505, 2011 WL 2443898 (E.D.Va. June 14, 2011).]

Monday, July 11, 2011

Subsequent 2255 not "successive" when first one was successful

United States v. Pearson, No. 10-6516 (4th Cir. June 29, 2011):

Petitioner filed a § 2255 motion arguing, inter alia, that his attorney failed to file an appeal on his behalf.  The District Court granted Petitioner's right to file an appeal but denied all other claims for relief.  After the Fourth Circuit affirmed Petitioner's sentence, Petitioner filed another § 2255 motion.  The District Court denied the second § 2255 motion as an unauthorized successive motion.  Subsequently, the District Court granted a certificate of appealability, acknowledging that Petitioner's motion was not in fact successive, but noting that jurisdiction rested with the Fourth Circuit.

It is settled law that not every numerically second § 2255 motion is a "second or successive" motion within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996.  When a prisoner’s first § 2255 motion is granted to permit a direct appeal, the counter of collateral attacks pursued is reset to zero.  Because the District Court granted Petitioner's original § 2255 motion and to permit a direct appeal, the instant § 2255 motion is not a second or successive motion within the meaning of § 2255(h).  Therefore, the District Court erred by holding that Petitioner was required to obtain an order from the Fourth Circuit authorizing the District Court to consider the motion.

However, if a habeas petitioner files an application for collateral relief that raises a successful appeal claim and additional claims, any subsequent petition will be considered "second or successive" if (a) the District Court ruled on the merits of the additional claims in the initial petition, and (b) the petitioner seeks to raise those claims again in the subsequent petition.  Therefore, to the extent Petitioner seeks to raise claims already rejected by the District Court in his previous § 2255 motion, the District Court is bound to provide Plaintiff with the option of omitting the repetitive claims or having the entire petition treated as successive.

Saturday, July 9, 2011

Sex offender registration doesn't constitute "custody" sufficient to satisfy habeas requirement

Wilson v. Flaherty, No. 3:10CV536, 2011 WL 2471207 (E.D. Va. June 20, 2011):

[This opinion concerns one of the "Norfolk Four." For a brief news story about this case, click here.]

The Background.  In July 1997, Michelle Bosko was raped and murdered in her apartment.  Eventually, five men were convicted with respect to crimes against Michelle Bosko:  Derek Tice, Danial Williams, Joseph Dick, Eric Wilson, and Omar Ballard.  Wilson was sentenced to eight and one-half years in prison.  In 2005, Wilson's sentence expired, he was released from prison, and he returned to his parents' home in Texas.

Other Defendants Receive Pardons.  In 2004, Wilson, Tice, Williams, and Dick petitioned the Governor of Virginia for absolute pardons.  In 2009, Governor Kaine concluded that Tice, Williams, Dick, and Wilson "had raised 'substantial doubt' about the validity of their convictions, but had not 'conclusively established [their] innocence.'"  The Governor issued conditional pardons to Tice, Williams, and Dick, released them from prison, but kept their convictions in place.  The Governor denied any relief to Wilson because Wilson was no longer in prison.

Wilson Subject to Sex-Offender Registration Laws.  Wilson currently resides in Texas, and is subject to sex-offender registration requirements and the collateral consequences of being on the sex-offender registry.  Wilson filed a petition for a writ of habeas corpus and requests the Court to expunge his record and release him from the requirement of registering as a sex offender.  This means that Wilson must register in person with the local sheriff's department each year.  Wilson must carry a sex offender card at all times or suffer a legal penalty.  He is characterized as a violent sex offender on the public national sex offender registry.  As an electrician, Wilson is prohibited from working on certain job sites because of his status.  On one occasion, for example, Wilson was removed from a Department of Homeland Security building because of his status.  Wilson may not leave the country.  If he is away from home for more than twenty-four hours, he must notify the authorities in person.  He endures humiliation each time he visits his step-son's school because the school performs a background check for each visitor.  Furthermore, Wilson may not adopt his step-son because of Wilson's sex-offender status.

The "In Custody" Requirement.  To qualify for relief under 28 U.S.C. § 2254, a petitioner must be "in custody."  Although the term "in custody" encompasses petitioners subject to immediate physical imprisonment, the term also includes those subject to some other restraints on freedom.  For example, an individual on parole or probation, sentenced to a rehabilitation program, sentenced to community service, or civilly committed, may satisfy the in-custody requirement.  These individuals satisfy the in-custody requirement because they suffer "substantial restraints not shared by the public generally."

Sex-Offender Registration Does Not Create "Custody."  Despite the consequences of being a convicted sex offender, federal courts have unanimously held that sex-offender registration and its collateral consequences do not qualify as "custody" for habeas relief.  Courts base these findings on the fact that the registration statutes analyzed do not significantly restrain sex offenders' liberty.  In other words, the regulations "are more analogous to collateral consequences such as the loss of the right to vote than to severe restraints on freedom of movement such as parole."

COA Granted.  Although many other Circuit Courts and District Courts have unanimously agreed that sex-offender registration laws do not create "custody," neither the United States Court of Appeals for the Fourth Circuit nor any District Court within the Fourth Circuit has ruled on the issue.  Accordingly, the Eastern District of Virginia grants a certificate of appealability on the issue.

Tuesday, July 5, 2011

Maryland issues COA regarding new double jeopardy case

Yearwood v. United States, No. RDB-05-0105, 2011 WL 826297 (D. Md. Mar. 7, 2011):

Yearwood's trial involved an acquittal of the charge of distributing cocaine, but the jury deadlocked on a second charge of conspiracy to distribute and possess with intent to distribute cocaine base.  The Government retried Yearwood and, in a second trial, a jury found him guilty of conspiracy.

On appeal, Yearwood argued that the Double Jeopardy Clause of the Fifth Amendment barred the Government from retrying him for conspiracy because the retrial required relitigation of a fact the jury decided in his favor in the first trial when it acquitted him on the distribution charge.  Yearwood argued that when the jury acquitted him on the distribution charge, it necessarily decided that he was not involved in a drug transaction that was the crux of the Government's conspiracy charge.  The Fourth Circuit held that because distribution and conspiracy are distinct crimes with separate elements, Yearwood's retrial on the conspiracy charge did not require relitigation of facts the jury decided in his favor when it acquitted him of the distribution charge.

After the Supreme Court of the United States denied Yearwood's petition for a writ of certioari, the Supreme Court decided Yeager v. United States.  Yearwood now relies on Yeager in moving for 2255 relief.  His motion, however is untimely.

Yearwood argues that the limitations period should run from the date on which the Supreme Court decided Yeager, rather than the date on which the Supreme Court denied his petition for cert. 

In Yearwood's view, Yeager stands for the proposition that if a critical issue of ultimate fact involving retrial of the hung charge was decided in Yearwood's favor in connection with the charge upon which he was acquitted, double jeopardy would bar retrial of the hung charge.  Yeager, however, does not stand for this proposition.  Yeager only stands for the proposition that a court cannot determine the preclusive scope of an acquittal for double jeopardy purposes by identifying either logical inconsistencies or synergies between the acquittal and the hung count.  To identify what a jury necessarily determined at trial, courts should scrutinize a jury's decisions, not its failures to decide.

Although Maryland determined that Yeager doesn't apply, and certainly doesn't apply retroactively, the Court nevertheless granted a certificate of appealability because Yearwood's double jeopardy claim is debatable.  The Court seems to base this decision on the ground that the Fourth Circuit has yet to interpret Yeager