Split Created: Does 2255(e)'s Savings Clause Apply To Past Misapplications of the Guidelines?

Per Brown v. Caraway (7th Cir. May 10, 2013)

Royce Brown always maintained his arson conviction was not a crime of violence.  Turns out, under Begay, he was right.  But Begay came much too late.  Brown was sentenced in 1996 as a career offender (adding several years to his sentence) based in part on his arson conviction.

Ordinarily, after Begay, Brown could have filed a 2255 motion to challenge his sentence.  But Brown had already filed--and lost--a 2255 motion in 2000.  And 2255(h) bars second or successive motions.

Brown nonetheless sought to profit from Begay and filed a 2241 petition for habeas corpus.  But 2255(e) bars consideration of habeas petitions, unless a 2255 motion  "is inadequate or ineffective to test the legality of his detention."  (This quoted text is often referred to as the "savings clause").

In this case, the CA7 creates a circuit split by holding that the savings clause applies, and permits a habeas petition.  The CA 11 (en banc) and CA5 had previously concluded--also in the context of 2241 petitions based on Begay--that the savings clause did not apply.

I am of two minds.  On one hand, equity favors allowing some relief where a sentence is manifestly in error.  On the other, considerations of finality must trump at some point.  I lean slightly to the CA11 and CA5's view that the  savings clause does not apply because 2255 procedures are in fact effective and adequate, but unavailable only because of a previous collateral attack.

I lean that way in part because--unlike the CA7--I do not think this conclusion leaves prisoners without a remedy.  Even if both a 2255 motion and a 2241 habeas petition are unavailable, a prisoner could file a petition for a writ of coram vobis (not nobis, as discussed below).

As this blog has discussed earlier, coram vobis requires:

1. a fundamental error in the prior proceedings
2. reasonableness in not having acted earlier (i.e., though habeas)
3. collateral consequences from the prior proceedings (standing)
4. interests of justice require granting the writ (no alternative remedy)

Here, application of the career enhancement is a fundamental error increasing the sentence.  Brown both preserved the issue by objecting in the initial sentencing and acted reasonably in raising it again soon after Begay was decided.  Brown's lengthened sentence provides standing.  And--if both 2241 and 2255 are not available--there is no alternative remedy.

Thus, I ultimately come out at the same point as the CA7, but would use a different procedural tool to get there.  I feel that this procedural tool does less damage to the "second or successive" bar.  But I am not a criminal lawyer, and there may be something I am missing.

On a total aside, I am surprised that the vast majority of U.S. courts call the writ "coram nobis" (before us) rather than "coram vobis" (before you).  The names do not imply a difference in procedure or remedies.  Rather, the distinction arose in English common law depending on whether a writ petition was filed before the King's Bench--where the King was supposed to preside, and so using the royal "we/us"--or Common Pleas, where the King did not preside, so the writ was only before "you" judges.  As America has no king, it would appear that "coram vobis" is more appropriate.

Split Created: What is a Second or Successive Habeas Petition

Per Suggs v. United States (7th Cir. Jan. 17, 2013)

AEDPA bars second or successive habeas petitions.  Here, the prisoner's first petition resulted in resentencing.  Now the prisoner challenges his conviction in a second petition.  Relying on past circuit precedent, a divided panel of the CA7 holds the petition barred, because the conviction issue could have been raised in the first petition.  (p. 8).

The CA2 and CA9 disagree.  (p. 11.)  The correct result is a very close call but I tend to agree with Judge Sykes' dissent and the other circuits:  The petition is not second or successive because the intervening resentencing creates a new judgment, and habeas petitions are directed at judgments.  At bottom, though, I question the panel procedure of the CA7.

The split revolves around the interpretation of a recent Supreme Court decision, Magwood v. Patterson, 130 S. Ct. 2788 (2010).  In Magwood, the Supreme Court held that a petition directed at the new sentence, following resentencing after an initial petition, could not be second or successive:  "[B]oth § 2254(b)'s text and the relief it provides indicate that the phrase 'second or successive' must be interpreted with respect to the judgment challenged." 

Magwood, however, specifically reserved the question here, and did so with a footnote apparently favorably citing past circuit practice:

The State objects that our reading of § 2244(b) would allow a petitioner who obtains a conditional writ as to his sentence to file a subsequent application challenging not only his resulting, new sentence, but also his original, undisturbed conviction. . . .  This case gives us no occasion to address that question, because Magwood has not attempted to challenge his underlying conviction.[fn]

fn.:Several Courts of Appeals have held that a petitioner who succeeds on a first habeas application and is resentenced may challenge only the "portion of a judgment that arose as a result of a previous successful action."

This reservation and citation would seem at first glance to leave past precedent intact.  Nonetheless, the statutory interpretation of Magwood--that second or successive refers to judgments, not claims--fatally undermines past precedent and demands that any petition following a new sentence not be barred because there is a new judgment.

I do not fault the Seventh Circuit majority for following past precedent because it was not explicitly overruled.  This is a very close issue.  I do fault the panel, however, for not pre-circulating their opinion.  As this blog has previously noted, Seventh Circuit Local Rule 40(e) demands precirculation where, as here, an opinion creates a conflict among circuits.  Precirculation would have also been required had the opinion adopted the position of other circuits and overruled past precedent.

In sum, regardless of the position adopted, this case should have been considered for en banc review prior to publication.  And the en banc court may have felt more liberty to depart from past precedent to follow the logic of Magwood.

Split Noted: Is Cumulative Error Doctrine Clearly Established For AEDPA? Plus AEDPA Commentary

Per Lott v. Trammell (10th Cir. Jan. 24)

I will not claim to have read all of this 100+ page effort.  Given the length and the subject--AEDPA--I assume without basis that it capital case.

Ah, AEDPA.  The other 1996 statute that certain liberal jurists love to hate.  Nowadays, to grant habeas relief to a state prisoner, a federal court must find that the state court's decision was either (1) contrary to, or (2) an unreasonable application of, (3) clearly established Federal law.

The split noted here concerns the third element; whether the cumulative error doctrine is clearly established.  Clearly established Federal law is limited to the holdings of SCOTUS.   In finding cumulative error analysis clearly established, the CA9 cites three different SCOTUS cases.  On the opposite side of the split is, bizarrely, the CA6.  I say bizarrely because the CA6 has actually been spanked more times on AEDPA recently than the CA9.

 Even more bizarrely, at least for me, I believe the CA9 is right.  The holding of  Chambers v. Mississippi, 410 U.S. 284 (1973), is on point.  Chambers's "claim, the substance of which we accept in this opinion, rests on the cumulative effect of those rulings in frustrating his efforts to develop an exculpatory defense."  Id. at 290 n.3.

But I actually want to discuss AEDPA's second element in light of some recent civil tort work I've been doing.  For a state court opinion to be "an unreasonable application of" Supreme Court law, it must be such that no reasonble jurist could possibly agree.  This standard is functionally the same as the "no reasonable litigant" standard established for objective baselessness by PRE, 506 U.S. 49, 55-61 (1993).

But there is one difficulty.  Any number of cases could be cited for the proposition that, if you get one judge (even in dissent) to agree with your position, that position cannot be objectively baseless as a matter of law.  Thus, for purposes of Noerr immunity, courts are willing to assume that all jurists act reasonably.

In contrast, any number of cases could be cited where habeas was granted based on a state appellate court's unreasonable application of Supreme Court law.  No longer is one lone voice enough to demonstrate reason.  Now federal courts are willing to overrule even a majority of their state brethren.

Obviously, this disparity can be explained by having a thumb on the scale of constitutional rights.  The any judge standard of PRE's progeny protects the First Amendment right to petition, while lack of any similar standard protects convicts right to due process.

But I think the more likely explanation is outcome-oriented jurisprudence.  In a private dispute, there generally are not any larger principles or constitutional visions at stake.  Whereas in habeas, the entire focus is on the larger principles of criminal justice.  Thus, even though the standards call for the same amout of deference, certain jurists are simply less willing to defer in the latter situation than the former.

Splits Noted: Does Severe Attorney Misconduct Justify Equitable Tolling? Is Equitable Tolling More Justified in Capital Cases?

Per Downs v. McNeil, 2008 WL 756348, *17-*26 (11th Cir. Mar. 24, 2008)

Ernest Downs was paid $5,000 dollars to kill Forest Jerry Harris in 1971. He was convicted of first degree murder and sentenced to death in 1978. Since then, he has filed numerous appeals. Beginning in 1992, Downs was represented by Florida’s Capital Collateral Regional Counsel organization, a special government body charged with assisting indigent death-row inmates. This appeal originates that same year, when CCRC filed a motion to vacate the sentence. That motion remained pending for five years, during which time AEDPA established a new time limit for state prisoners to seek federal habeas corpus. The district court summarily dismissed Downs’s habeas petition, so this Eleventh panel assumes Downs’s allegations, as set forth below, are true.

Downs was aware of the law and wrote his CCRC counsel several times to ensure that he comply with the strict one year deadline. Counsel informed Downs that a state petition had been filed (which would toll the federal deadline) when, in fact, it had not. The state petition was eventually filed on the last day of the federal timeline. After it was filed, the two attorneys at CCRC who were qualified to be lead counsel on a capital case resigned from Downs’s case, leaving CCRC without an attorney who could serve as lead counsel. When a new counsel was finally hired a year later, Downs informed him of the timing issue and sought to file for federal habeas immediately. The new CCRC counsel did not follow this directive and, indeed, returned Downs’s draft of a federal habeas motion. The Florida Supreme Court denied the motion to vacate and, nine days later, CCRC attorneys filed a petition for federal habeas corpus. The district court found the petition to be time-barred by AEDPA.

This panel of the Eleventh Circuit reverses, holding that serious attorney misconduct, more than mere negligence, constitutes an extraordinary circumstance which merits equitable tolling of AEDPA’s deadline. In order to qualify for tolling, such a circumstance must not only be ‘extraordinary’, but also beyond petitioner’s control and unavoidable even with due diligence. In so holding, the CA 11 widens a split between the CAs 3,5,9,10 (so holding) and the CA 7 (applying a bright-line rule that all attorney misconduct is attributable to the client under agency theory, and thus denying all tolling). The CA 4, in dicta, has suggested that it would agree with the CA 7. The Eleventh Circuit panel questions the agency law underpinnings of the Seventh Circuit’s rationale, noting that when an agent acts adversely to the principal, the principal cannot be charged with the agent’s misdeeds.

The panel states that its decision on this issue is not influenced by the fact that this is a capital case. Indeed, it cites circuit precedent which disfavors giving the fact that a case is a capital case any special weight. During this discussion, the panel notes that CAs 4,7,11 agree, whereas CAs 1,3 do treat death as different in determining whether equitable tolling should apply.

Totally regardless of the merits of Downs appeals, the course of behavior by the state capital attorneys in this case does raise larger questions regarding the justice of system...

Splits Noted in the Circuits - 3/3-3/4

I'm on break, so apologies for the typographical errors as I try to catch up on the recent opinions - I'm away from a bluebook and my internet connection does not allow me to check for spelling errors. Further, any comments to let me know this blog is catching on would be most appreciated. Finally, the third case in this list is not a new case, but stems from a denial of rehearing en banc.

• Is False Identification - or Misprision of a Felony - a Crime of Moral Turpitude? Blanco v. Mukasey, 2008 WL 553869, *8, n. 4 (9th Cir. Mar. 3, 2008)

One is not eligible for cancellation of removal if one has committed a crime of moral turpitude, which the Supreme Court has determined includes any crime that involves fraud. In this case, Blanco applied for cancellation of of removal, but was rejected because of, in relevant part, his conviction for false identification to a peace officer. The Ninth Circuit, relying on a prior Pregerson/Reinhardt opinion, holds that, because the California law's definition of false identification does not require the defendant to have materially benefited from that act notwithstanding any impediment to the investigation, the crime does not categorically involve moral turpitude. In so doing, the Ninth deepens a split from the CA 7 and 11.

• Does a Motion for Reduction of Sentence as a Matter of Discretion, Rather than Legality, Toll AEDPA's One Year Limitation Period for Collateral Review? Alexander v. Sec., Dep't of Cor., 2008 WL 553294, *15-*18 (11th Cir. Mar. 3, 2008)

This isn't a pure split; it turns on state law motions to reduce sentences which have slight differences. In pertinent part, however, these motions are based in the same laws -- laws which allow the district court to reduce a sentence imposed not as a matter of legal review, but rather clemency. The Eleventh Circuit holds, in accordance with its own precedent and joining with the CA 3 and 4, that applications for leniency should not toll AEDPA's strict deadlines for the review of the legality of a sentence; only the Tenth Circuit disagrees.

• Is there a Presumption of Prosecutorial Misconduct When the New Charges Involve Distinct Factual Circumstances, United States v. Jenkins, 2008 WL 564980, *7-*11 (9th Cir, Mar. 4, 2008)

As noted in the introduction, this case is not a new panel opinion, but rather comes to this blog from the denial of rehearing en banc. It is also fitting to cover this opinion, as tomorrow's general interest post on Indian Sovereignty is inspired by the author of the panel opinion at issue.

Sharon Ann Jenkins unequivocally admitted to alien smuggling (1) while testifying in her own defense against charges of marijuana smuggling (2); she had also admitted the former crime in previous statements to police. On the first day of the jury's deliberation in a trial for crime (2), the U.S. Attorney sought to indict the defendant for the admitted crime (1). The District Court dismissed the charges as a prophylactic measure to protect Jenkins' Fifth Amendment rights and the panel affirmed. The panel created a rule that if, absent the in court testimony, there was sufficient evidence to charge the second (1) crime at the time of the first (2) trial, a presumption of vindictiveness arises.

Judge O'Scannlain, on behalf of six others, dissents from the denial of rehearing en banc, noting that both the 7th and 11th Circuits have held that when different criminal conduct is charged, there is no presumption of vindictiveness and no burden shifting. Furthermore, the 1st, 8th, and 10th Circuits have held that charges arising out of distinct factual nuclei cannot give rise to any presumption of vindictiveness. Perhaps lightning will strike once again?