Thursday, August 09, 2018

Note change in oral argument times.

At least some oral arguments for the October sitting are being scheduled for 8:30 a.m. instead of 9:00 a.m. Counsel are still instructed to check-in at the clerk's office at 8:00 a.m., but argument is starting half an hour earlier than it used to start.

Tuesday, August 07, 2018

6th Circuit Raines in Potter, a.k.a., Attention Hardcore Habeas Nerds



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Federal criminal practitioners spent over a decade trying to figure out what the heck a “violent felony” was under the Armed Career Criminal Act’s so-called “residual clause.” In 2015, the Court put an end to this misery and held, in Johnson v. United States, that the residual clause is unconstitutionally vague. Johnson and its issue have liberated numerous federal prisoners from lengthy sentences. Johnson has also forced federal courts to wade into the muck that is the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).

Johnson made it possible for men and women to file motions to vacate and correct their sentences under 28 U.S.C. § 2255, which otherwise requires prisoners to file such motions within 1 year after their conviction (after appeals) becomes final. There are two types of people who file these motions: (1) first-time petitioners, and (2) “second or successive” petitioners. First-time Johnson petitioners had one year to file motions to vacate their sentences because Johnson was a “right . . . initially recognized by the Supreme Court [that] has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. 2255(f)(3). SOS petitioners have an additional hurdle to clear: they must receive a certification from the Court of Appeals, which confirms that the motion “contain[s] . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).

Damon Raines fell into the first category: he had never filed a § 2255 motion before. Raines is a federal prisoner who was subjected to the ACCA’s 15-year mandatory minimum because he had been convicted of three crimes, which the district court believed were predicate felonies: (1) a 1991 Michigan conviction for assault with intent to do great bodily harm less than murder; (2) a 2002 federal conviction for distributing cocaine base; and (3) a 2002 federal conviction for collecting credit by extortionate means. On his own, Raines filed his first § 2255 motion to vacate his sentence within one year of Johnson, arguing that his third conviction for collecting credit by extortionate means is no longer a violent felony now that the ACCA no longer has a residual clause.
The government raised a number of procedural defenses to the claim, arguing that the court should not even address whether that conviction remains a predicate ACCA felony conviction: forfeiture, procedural default, and timeliness. The Sixth Circuit swiftly rejected each of these attempts to obviate the need to address the merits. Raines adequately preserved his Johnson claim in the district court by citing the case throughout his pro se briefs. He had cause for not challenging his ACCA enhancement on direct appeal because Johnson was a brand new rule announced after his conviction became final, and he suffered prejudice because (as the court later explained), the application of the enhancement was unconstitutional. Finally, Raines’s motion was timely because he filed the motion less than a year after Johnson was decided.

But the greatest hurdle for Raines to clear was the government’s claim that he could not obtain relief because the sentencing judge did not make clear whether his convictions were “violent felonies” under the residual clause or the two other clauses of the ACCA. As the panel noted, the government (and the 10th and 11th Circuits) require first-time petitioners to fulfill “the seemingly improbable task of proving that [their] sentencing judge[s] relied only on the residual clause in sentencing him.” That was the rule of Potter (which we covered here), which held that motions for relief from the judgment must fail unless the 2255 movant can prove that his ACCA sentence was based only on the residual clause. Interestingly, Judges Cole, Gibbons, and Bush expressed disagreement with Potter’s central holding, noting that “[t]his burden . . . presents a tall order when a movant’s sentencing record . . . is silent as to which ACCA clause a district court applied.” What is more, the panel noted, such silence was the norm and made sense before Johnson.

Despite the panel’s disagreement with Potter, it was bound by that decision, and so the three judges had to decide whether Potter precluded Raines from obtaining review of his conviction. And here, the panel reined in Potter’s reach, reading it to apply only when “(1) the movant is bringing a second or successive motion and (2) there is evidence that the movant was sentenced under a clause other than the residual clause, such as the sentencing judge’s averment that the movant was indeed sentenced under another clause.”

Chief Judge Cole went further and wrote separately to explain why Potter’s holding “that a second-or-successive habeas petitioner must show that a sentence was based only on the residual clause” is wrong.

He began by noting that the Supreme Court granted relief to a similarly situated man in Welch v. United States, when it held that Johnson’s holding was retroactive to cases on collateral review. Welch’s case came to the Supreme Court as an appeal from a denial of a certificate of appealability. Habeas petitioners must obtain a COA from a court, which has decided that the petitioner has made a “substantial showing” that he has been denied a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court held that Welch had made such a showing even though the record was not clear as to whether the judge imposed the ACCA enhancement under the residual clause. In fact, the sentencing court had said that Welch’s predicate convictions qualified under the residual clause and the elements clause. Despite this fact, the Supreme Court held that telegraphed that when a petition “pairs a new-rule-of-constitutional-law challenge and an old-rule-of-statutory-law challenge satisfies § 2253(c)’s constitutional right requirement . . ., then such a petition also satisfies § 2255(h).”

In Chief Judge Cole’s view, “[w]hen a petitioner’s sentencing record is unclear as to which clause the petitioner was sentenced under, the petitioner satisfies the ‘new constitutional rule’ requirement” of § 2255(h)(2) “so long as the challenge includes a claim under Johnson.” Under those circumstances “any Johnson error would not be harmless,” because the sentence may have rested on a ground that the Constitution forbids.

For those who bore with me through all of this procedural discussion, I hope to provide a payoff. Once the judges reached the merits of Raines’s claim, they held that his 2002 federal conviction for using extortionate means to collect an extension of credit, 18 U.S.C. §894(a)(1), is not a “violent felony” for ACCA purposes. This is so because it does not have as an element the actual threatened, or attempted use of force because a person can commit the crime by causing harm to a person’s reputation or property.

Raines also provides some clues about the outcome of a battle that is already brewing. In June, the en banc court heard arguments in Williams v. United States (audio here). The court asked the parties to address whether the § 2255 movant has the burden of showing that his sentence was based only on the residual clause and what evidence should be used to decide whether the residual clause was the cause of the 15-year enhancement. Stay tuned.

Friday, August 03, 2018

Reminder to Counsel: Representation Includes Filing Petitions for Certiorari


According to the fine folks at SCOTUSBlog, the U.S. Supreme Court grants certiorari in approximately 80 cases each year. Nearly 8,000 litigants petition the Court for review. And so, the odds that the Supreme Court will grant certiorari in any particular case are extremely poor—somewhere around a 1% chance, according to one estimate. Those chances are even lower if the petitioner must file the petition in forma pauperis, i.e., a motion for permission to file without paying the Court’s filing fee. This can leave counsel appointed under the Criminal Justice Act to represent criminal defendants on appeal feeling like filing a petition for certiorari is a waste of time even when the client wishes to do so.

In an unpublished order, in United States v. Givhan, the Sixth Circuit reminded all CJA appointees that, even though counsel need not file a frivolous petition for certiorari, they must follow a certain protocol before they may withdraw. Counsel must inform the defendant of his or her right to file a petition and file a certification that, after reviewing the records, “there exist no non-frivolous grounds for appeal.” In Givhan’s counsel did not follow this required procedure.

The Sixth Circuit’s reminder raises the question: Why not file a petition for certiorari? If the Supreme Court can change the law, are there any claims that are non-frivolous? Sometimes writing a certification takes as much time to draft as a petition for certiorari. Plus, who knows? Maybe you can be like the defense lawyers who have prevailed against all odds before. The modern Commerce Clause jurisprudence would not be what it is without the efforts of two Federal Public Defenders who happened to catch the Supreme Court’s eye in United States v. Lopez.


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