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 Noted: Is The Stain Of Conviction A Collateral Consequence

Per Murray v. United States (1st Cir. Jan. 4, 2013)

A petition for the writ of coram nobis, or its lesser known cousin coram vobis, is often the last desperate filing made by a post-jailhouse lawyer.  The writ permits correction of "fundamental" errors in order to "achieve justice" when "no other remedy" is available.

The writ has been abolished in civil actions, superceded by Rule 60.  But it lives on in criminal actions.  In large part, it exists to provide review of convictions after the prisoner has served his sentence.

There is little enough jurisprudence regarding the legal standard applicable to the writ.  Nonetheless, the circuits appear to agree on certain fundamental elements that a petitioner/convict must prove:

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)

In this case, the First Circuit briefly notes  (11 n.6) an earlier decision (United States v. George, 676 F. 3d 249, 254 (1st Cir. 2012)) which described a circuit split on whether a conviction, standing alone, can satisfy the third element.  The CA1, CA2, CA3, CA5, and CA7 hold a conviction insufficient.  The CA4, CA9, and CA11 hold a conviction sufficient, and the CA6 has, sub silentio, done the same.

For me, the CA4, CA9, and CA11 have the better of the argument.  As the Supreme Court recently reiterated, albeit in the context of declining to extend the presumption:

 In the context of criminal conviction, the presumption of significant collateral consequences is likely to comport with reality.  As we said in Sibron, it is an "obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences."

Spencer v. Kemna, 523 U.S. 1, 12 (1997) (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)).  And in Sibron itself, the Court held:

[I]t is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State's right to impose it on the basis of some past action.

392 U.S. at 57.  So long as Sibron remains good law, as indeed it is, lower courts should apply a presumption of collateral consequences to criminal convictions.

Moreover, there is a larger point.  Assuming a petitioner proves the other elements for coram nobis, i.e., a fundamental error that was uncorrectable earlier, why should the petitioner (rather than the government) have the burden of proving collateral consequences?  The fundamental error, or the existence of a grave miscarriage of justice, should be sufficient, in itself, to overcome the interests of finality absent proof that the erroneous judgment has no effect.

Take, for example, two people convicted of honest-services fraud under 18 USC 1341 before McNally limited the statute to money or property fraud.  One is convicted in 1976 and sentenced to five years; the other convicted in 1986.  Should the former be deprived of the same remedy afforded the latter (i.e., expungement of his conviction) simply because simply because his appeals were exhausted and his sentence was served?  I think not.  Both did not commit a crime.  Both deserve to have their record and reputation restored, regardless of whether the former can actually prove a detrimental consequence.

Finally, the note on the first page of the First Circuit opinion suggests that Judge Boudin may be ill.  I have always admired Judge Boudin's intelligence and opinions.  I hope that my reading of the note is mistaken, but if it is not, I wish him all the best.

Split Widened: Can a District Court Modify a Conditional Writ of Habeas Corpus After It Has Become Final?

Per Harvest v. Castro, 2008 WL 795360, *6-*11 (9th Cir. Mar. 27, 2008)

Joshua Harvest was convicted of first degree murder during a state trial. The Ninth Circuit granted a conditional writ of habeas corpus, reasoning that the admission of hearsay testimony at trial violated the Confrontation Clause, and remanded to district court. The district judge gave the state sixty days to pursue one of three options – modify the conviction to second degree murder, retry Harvest, or release him.

Unfortunately, the state Attorney General, who handled the habeas litigation, did not inform the district attorney of this deadline and the sixty days expired without any action being taken. The error was discovered a month later, and the state filed a motion to amend the district court’s order because of the mistake. Harvest, on the other hand, argued that he was entitled to immediate release. The district judge amended the order, finding that the state’s error was ‘excusable.’

The Ninth reviews the ability of district courts to modify conditional writs of habeas corpus de novo. In its discussion, the panel notes that the circuits are split on the issue. The CA 6 hold that the failure to comply with the terms of a conditional release must always result in the release of the prisoner. The CAs 3,7, on the other hand, believe that the district court has broad discretion in deciding whether to employ its equitable powers to modify conditional writs even after they have become final.

The Ninth holds that the district court does have the power to modify its writs, but that the state motion to modify is governed by Federal Rule of Civil Procedure 60. Rule 60(b) permits a party to seek relief from final judgment under a limited set of circumstances, e.g. fraud, mistake, and newly discovered evidence. The attorney general’s mistake in this case, however, is not one of the type envisaged by the rule and none of the other circumstances apply either. The Ninth thus orders Harvest’s immediate release, but concludes its opinion by noting that nothing prevents the state from arresting and retrying him the moment he is released.

Additional coverage from the California Appellate Report and Decision of the Day. Like Professor Martin, I think that Judge Tashima's opinion is exactly right, especially in light of the Supreme Court's decision in Gonzalez v. Crosby, 545 U.S. 524 (2005).

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?