Tuesday, January 26, 2016

You can't penalize a defendant at sentencing for refusing to present evidence in support of a claim




We have all been there before - a client contends that the police are lying, they are not providing all of the evidence, or, even more significantly, have doctored the evidence.  So what happens?  You investigate, find out whether there is any truth to the allegations, and act (or not act) accordingly.  But every once in awhile, the client moves forward without you.  And that is when the trouble can really start.

In United States v. Cabrera, the defendant was convinced that police had altered an audio tape of an undercover buy.  After trial, the defendant, acting pro-se, suggested that not only was the tape altered, but that the police officers were corrupt, and that he had been forced to participate in the crime at gunpoint.   At sentencing, the court imposed the high end of the Guidelines range, based in part on the allegations (which the court determined were attempts to "game" the system), and the defendant's failure to present evidence in support of the allegations.

The Sixth Circuit determined that the court's reliance on both of these factors was reversible error, even under a plain error standard of review.  The Court first determined that by punishing Cabrera for failing to put on evidence (such as his own testimony) on the issue of the tape alterations, it was punishing Cabrera for exercising his Fifth Amendment privilege against self incrimination.

Next, the Court determined that the Sixth Amendment was also violated when Cabrera was punished for raising a "fantastic" claim.  "By relying on this factor, the district judge violated Cabrera’s Sixth Amendment right to oppose the government’s case against him."  Such conduct fell outside the purview of  18 U.S.C. § 3553(a)(2)(A).   The Court therefore remanded for resentencing.

Tuesday, January 12, 2016

No Extensions of Time for Initial § 2255 Motions

This week, the Sixth Circuit published a decision in United States v. Asakevich disagreeing with the Third Circuit about a district court's jurisdiction to grant a request to extend time to file a 28 U.S.C. § 2255 motion before the motion is filed. 

Federal prisoners generally have one year to file a motion to vacate their sentences. 28 U.S.C. § 2255(f). In Asakevich, as the deadline approached,the defendant asked the court for a 90-day extension. The Sixth Circuit affirmed the district court’s conclusion that it lacked authority to grant the extension motion, since there was no live case or controversy at the time of his request.

The court recognized that its opinion conflicts with the Third Circuit’s decision in United States v. Thomas, 713 F.3d 165, 173–74 (3d Cir. 2013). There, the Third Circuit held that district courts have jurisdiction to consider preemptive motions to extend time for § 2255 motions because, unlike petitions under § 2254, § 2255 motions are a continuation of the defendant’s federal criminal case. In rejecting this reasoning, the Sixth Circuit looked to the policies underlying § 2255 and concluded that there was no persuasive basis for distinguishing it from § 2254 for these purposes.

The court recognized in closing, however, that a pro se extension motion could provide sufficient details about the proposed § 2255 action to fairly construed it as an initial § 2255 pleading. It also noted that a failed pro se extension motion may provide support for an equitable tolling argument.