Sixth Circuit construes 18 U.S.C. §3583(h) in a case of first impression

             In United States v. Price, Andre Price pleaded guilty to bank robbery and was sentenced to 60 months imprisonment followed by 36 months of supervised release. Shortly after his release from prison he twice tested positive for cocaine. No action was taken regarding those violations. Within two weeks of those violations, Mr. Price twice tested positive for cocaine. At the revocation hearing Mr. Price proposed inpatient substance abuse treatment rather than imprisonment. The district court considered the sentencing options and imposed a below-Guidelines sentence of 2 months of imprisonment followed by 34 months of supervised release.

Two weeks after Mr. Price was released from imprisonment, he violated the terms of his supervised release by possessing and using crack cocaine and being absent from his halfway house without permission. At the revocation hearing, Mr. Price again sought treatment instead of incarceration. The district court considered that option inappropriate and sentenced him to 24 months imprisonment and a 12 month term of supervised release. The conditions of supervised release included 6 months in a halfway house. Inpatient treatment could possibly be substituted for time in the halfway house “on a month-for-month basis.” (Op. at 3).

On appeal, Mr. Price argued that his term of supervised release was procedurally unreasonable because it exceeded the maximum authorized by 18 U.S.C. §3583(h). That claim was reviewed for plain error since there was no objection in the district court to the length of the term of supervised release.

Section 3583(h) provides that the length of a term of supervised release “shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” The statute’s last clause not only requires the district court to subtract “the length of any newly-imposed period of incarceration from a term of supervised release” but it also requires the court to “subtract the length of any term of imprisonment imposed upon a prior revocation of supervised release related to the same underlying offense.” (Op. at 5).

Applying §3583(h) in Mr. Price’s case, the district court correctly noted that the maximum term of supervised release on the bank robbery conviction was 36 months. The court then subtracted the most recent 24 month term of imprisonment and determined that the maximum for any new term of supervised release was 12 months. The district court, however, erred by failing to reduce the term of supervised release by the 2 month term of imprisonment that was imposed when Mr. Price was initially revoked. The panel majority determined that plain error occurred and had to be corrected on remand.

Mr. Price also argued that his 24 month sentence was substantively unreasonable because he was not granted inpatient treatment rather than incarceration. The Sixth Circuit found no abuse of discretion because the district court “explicitly considered” the treatment option under 18 U.S.C. §3583(d) and determined it was inappropriate under the circumstances. Thus, Mr. Price failed to rebut the presumption that his within-Guidelines sentence was reasonable.

Accordingly, Mr. Price’s 24 month term of imprisonment was affirmed but the panel majority vacated the 12 month term of supervised release and remanded the case for the imposition of a new term of supervised release that did not exceed the maximum allowed by §3583(h).

In a separate opinion, Judge Batchelder agreed with the majority that Mr. Price’s 24 month sentence was not substantively unreasonable. She would have joined the majority’s ruling on Mr. Price’s procedural reasonableness challenge if the issue were reviewed de novo but she dissented because in her view the error was not “plain” or “obvious or clear.” Judge Batchelder noted that the interpretation of §3583(h) is a matter first impression in the Sixth Circuit and the Supreme Court has not addressed the issue. Under Sixth Circuit plain error precedent Judge Batchelder viewed that as “fatal” to Mr. Price’s procedural reasonableness challenge. (Concurring-Dissenting Op. at 9).   

Shepard documents are used to establish Tennessee aggravated assaults as ACCA predicate offenses. 

The use of Tennessee’s aggravated assault statute as an ACCA predicate offense is again at issue in the Sixth Circuit.

In Davis v. United States, Jeremiah Davis pleaded guilty in 2001 to being a felon in possession of a firearm under 18 U.S.C. §922(g)(1). On the basis of three prior Tennessee aggravated assault convictions he was sentenced as an armed career criminal under the ACCA. In 2016, Mr. Davis filed a habeas petition seeking relief under Johnson v. United States, 135 S.Ct. 2551 (2015). He contended that the earlier of those assault convictions were not ACCA predicate offenses.

            The district court agreed with Mr. Davis. The court relied on United States v. McMurray, 653 F.3d 367, 376 (6th Cir. 2011) which held that reckless aggravated assault was not a violent felony under the ACCA’s use of physical force clause. 18 U.S.C. §924(e)(2)(B). The court concluded that Mr. Davis was entitled to Johnson relief because he could only have been sentenced under the ACCA’s residual clause.

            The Sixth Circuit reversed the grant of habeas relief. The court noted that Mr. Davis argued in the district court that the prior convictions were not predicate offenses under the ACCA’s use-of-force clause because aggravated assault could be committed with a reckless mental state. But that argument was mostly abandoned on appeal “and for good reason.” (Op. at 4). The Sixth Circuit observed that McMurray was effectively overruled by Voisine v. United States, 136 S.Ct. 2272 (2016) in which the Supreme Court “found recklessness sufficient to constitute a crime that has, as an element, the use or attempted use of physical force.” (Op. at 4).

            Subsequent to Voisine, the Sixth Circuit held in United States v. Verwiebe, 874 F.3d 258, 264 (6th Cir. 2017) that reckless conduct can qualify a conviction as a crime of violence under U.S.S.G §4B1.2’s use-of-force clause. Verwiebe was applied in United States v. Harper, 875 F.3d 329 (6th Cir. 2017) to support the conclusion that reckless aggravated assault in Tennessee is a crime of violence under §4B1.2’s use-of-force clause. Although Verwiebe and Harper involved §4B1.2’s use-of-force clause, their holdings applied to the ACCA’s use-of-force clause because both clauses are construed to have the same meaning. (Op. at 4). In Mr. Davis’s case, the Sixth Circuit said Harper was binding and Tennessee’s aggravated assault statute (Tenn. Code Ann. §39-13-101(a)(1)) “is categorically a crime of violence.” (Op. at 4). (Note – Harper (17-7613) and Verwiebe (17-8413) are pending on petitions for writs of certiorari and are scheduled for the Supreme Court’s conference on 9-24-18).

            Against that backdrop, Mr. Davis argued that he was entitled to Johnson relief because the government failed to show that his convictions were under a subsection of the statute that brought him within the ACCA’s scope. The Sixth Circuit found that the juvenile petitions on which the government relied showed that Mr. Davis was charged with aggravated assaults that stemmed from two separate shootings in which the victims sustained “serious bodily injury.” (Op. at 5). The court rejected Mr. Davis’s contention that the juvenile petitions were not Shepard documents because, “after a bench trial, the sentencing court can consider only the judge’s formal rulings of law and findings of fact.” (Op. at 6). The Sixth Circuit found that charging documents can be considered whether a bench trial or a guilty plea occurs.

            Mr. Davis further argued that one of the juvenile petitions could not be considered because it originally charged him with attempted first degree murder and he was convicted of the lesser included offense of aggravated assault. In the Sixth Circuit’s view, however, the only possible lesser included offense was contained in the subsection of the aggravated assault statute that qualified as an ACCA predicate.

            Thus, the Sixth Circuit concluded that Mr. Davis was not entitled to Johnson relief because Tenn. Code Ann. §39-13-101(a)(1) is a crime of violence under the ACCA’s use-of-force clause.

 

 

 

When does a judge go too far in controlling the courtroom?

Circuit court judges are at their most polite when writing about district court judges, rarely criticizing their lower-court colleagues even when correcting their errors. But sometimes the cracks show through. Take for example today's unpublished opinion in United States v. Jones, in which appellant Tommy Lee Jones (presumably unrelated to the famously mercurial actor) accused the district court judge (also perhaps a bit mercurial) of misconduct. The panel did not grant relief on that claim, but it did politely articulate some concerns.

At trial, the judge made comments presumably intended to speed along the trial, but seemingly all directed at the defense's attempts to question witnesses. Without ever naming the judge, the opinion states on several occasions that the judge's conduct "was not model judicial behavior." Indeed, the  judge made multiple sua sponte admonishments that defense counsel was "wasting the jury's time." In contrast to the district judge's tone, the appeals court's language is a model of restraint:

• "Most of the comments, read in context, amounted to inarftul attempts by the district court to promote trial efficiency . . . ."
• "It is true that the district court could have been more restrained . . . ."
• "The court should have chosen its words more carefully . . . ."
• "[T]he district court's expressions of frustration and its interjections were imperfect attempts to run the trial in a focused and efficient manner . . . ."

In supporting its determination that this conduct did not result in an unfair trial, the opinion cited to a prior decision, tactfully noting that the earlier case involved the "same presiding judge ma[king] twenty-six comments like the ones cited by Jones" (emphasis added), and quoting that decision's conclusion that this was "acceptable, though not necessarily model, judicial behavior."

The opinion notes two particularly concerning comments, both of which appeared to make positive conclusions about the credibility of the prosecution's case agent. Although the judge's comments "c[a]me very close to judicial misconduct," they did not cross that line due to the "extensive curative instructions" given before and after the trial. Although it found no abuse of discretion, the Sixth Circuit took the time to remind courts everywhere to "be mindful of their conduct in the presence of the jury and . . . take necessary precautions to prevent appearing partial to one side."

Although Mr. Jones failed to prevail on this claim, the opinion does grant relief on certain sentencing and restitution issues, so Mr. Jones will be back in front of the same judge soon.

Another habeas win: Michigan's sentencing practices run contrary to established Supreme Court precedent

In any given week, it is rare to see a Sixth Circuit opinion granting habeas relief. This week's bumper crop of four habeas wins is may set a record. Today's habeas win, Robinson v. Woods, will likely have the most significant implications for other litigants, at least those in Michigan. The opinion holds that one of Michigan's standard sentencing practices is unconstitutional in light of the Supreme Court's 2013 decision in Alleyne.

In Michigan, the state's Department of Corrections prepares a presentence report that calculates a score based on certain offender variables, some of which "do not reflect the mere elements of the offenses for which a defendant was convicted." If adopted by the judge, this score can result in a higher minimum sentence than would have been warranted without those judge-found facts.

The problem with this approach is that the Supreme Court held in Alleyne that it is unconstitutional to to use judge-found facts to increase the defendant's minimum sentence. (The Court's prior decisions in Apprendi and Blakely addressed increased maximum sentences, not minimum sentences.) The Sixth Circuit holds today that Michigan's sentencing scheme violates Alleyne. Strangely enough, the Michigan Supreme Court appears to have reached the same conclusion about its own practices in a 2015 decision, and yet the State of Michigan still argued in this case that the practice was not unconstitutional.

Finally, this case highlights the importance and potential injustice of the Supreme Court's byzantine retroactivity doctrine. The Sixth Circuit has held that Alleyne does not apply retroactively on collateral review because the Court did not expressly make it retroactive, and it is not (1) a "substantive" rule or (2) a "watershed rule of criminal procedure."* See In re Mazzio, 756 F.3d 487 (6th Cir. 2014). The only reason that habeas relief was warranted in this case is that the Supreme Court issued Alleyne approximately one month before the Michigan Court of Appeals issued its opinion in this case, and thus Mr. Robinson's conviction was not yet "final" at the time of Alleyne. Had the Supreme Court waited one month, Mr. Robinson's sentence would still have been unconstitutional, but he would not have been entitled to habeas relief.

*Only a page after its discussion of retroactivity, the Robinson opinion makes this curious statement: "Alleyne was a watershed opinion, overruling two prior precedents . . . ." Taken at face value, that language would suggest that Alleyne should be considered retroactive.

The Door is Merely Cracked for § 3582(c)(2) Sentencings

Case Background:

In 1998, the Sixth Circuit reviewed Matthew Otis Charles’ case for the first time (United States v. Charles, 138 F.3d 257 (6th Cir. 1998)). 

He was convicted by a jury of several counts including conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846.   At sentencing, the court adopted the recommended guidelines range of 360 months to life but varied upward and sentenced him to 420 months imprisonment. In his direct appeal, Charles raised several challenges pertaining to the search warrant, the insufficiency of the evidence at trial, and the district court’s application of the sentencing guidelines - including the amount of crack cocaine applied to him and the enhancement for obstruction of justice.  The Sixth Circuit found his arguments lacked merit and upheld the conviction and sentence. 

In 2008, the Sentencing Commission retroactively amended the sentencing guidelines to reduce the disparity between penalties for crack cocaine and powder cocaine offenses.  This reduced Charles’ guideline range and he moved for a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2).   The government objected because he was a career offender, and the district court did not act on his motion.  In 2010, Congress amended and lowered the guidelines for crack cocaine offenses, and Charles filed a subsequent 18 U.S.C. § 3582(c)(2) motion.   The court did not respond so Charles sent follow-up letters to the district court and filed a third motion.  In 2014, after objections were made by the government, the district court granted the third motion and reduced his sentence to 292 months. 

The government appealed (United States v. Charles, 843 F.3d 1142 (6th Cir. 2016)).  In this second appeal, the Sixth Circuit recognized that Charles’ §3582 motion “hinges on his original sentence and direct appeal and whether he has already been deemed a career offender.”  The Sixth Circuit found that they had already ruled on that point in his direct appeal finding him to be a career offender.  This made him ineligible for the sentencing reduction and the Sixth Circuit reversed the sentence and remanded the case to the district court “for the purposes of entering an order that rejects Charles’ § 3582(c)(2) motion.” Charles, 843 F.3d at 1147.

Present Appeal:

Following remand, the district court imposed the original sentence and Charles appealed.  On appeal, He argued that the district court misread the Sixth Circuit’s previous decision and missed an opportunity to correct an illegality through a new sentencing.  The Sixth Circuit disagreed and noted a few principles of sentencing. 

First, a district court must respect the scope of the remand.  Here, the remand was quite limited and only permitted the lower court to enter an order denying the motion. 

Second, “§ 3582(c)(2) presents a narrow exception to the general rule that a district court may not modify a final sentence.” But this statutory provision limits who is eligible for relief and career offenders are not eligible.   Further, § 3582(c)(2) does not throw open the door to permit a full resentencing.  The door is merely cracked ‘to allow the sentencing court to reduce a sentence based on an amended guideline that the Commission has made retroactive.”  This does not enable a defendant to “‘take advantage of any changes’ in the law that occurred in the years after his original sentencing, be they ‘retroactive or not.’”

Charles raised other arguments pursuant to Alleyne v. United States, 570 U.S. 99, 103 (2013), Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and also 18 U.S.C. 3742(g) and 28 U.S.C. § 2106.  However, the Sixth Circuit provided “the federal courts thus may not provide relief for Charles.” 

As a final note, the Court commended Mr. Charles for his spotless incarceration record and his educational pursuits.  While on supervised release, he earned noteworthy testimonials from supervisors and was noted to not only maintain a job but also volunteer.   Though the lower court’s denial of his § 3582(c)(2)  motion was affirmed, the  Sixth Circuit offered that “executive clemency provides Charles another avenue for relief.” 

A fool for a client?

In this week's third significant habeas win, Ayers v. Hall, the Sixth Circuit somehow manages to simultaneously prove and disprove the old bon mot that people who represent themselves in court have a fool for a client. (For the other two habeas wins, see here.)

Attorney William Ayers was accused of failing to file state tax returns. He was "an experienced criminal defense attorney and represented himself for twenty-one months between indictment and trial. In all that time, however, he managed never to expressly waive his right to counsel, file a notice of appearance, or seek permission to proceed pro se. Most importantly, the trial court somehow never informed him of his right to counsel or determined on the record whether his self-representation was a voluntary waiver of that right.

This is the rare case where Supreme Court precedent runs directly contrary to the state-court decisions denying Mr. Ayers relief. The Court's decisions in Faretta and Tovar have long since mandated that a judge obtain an express and knowing waiver of the right to counsel, and require that waiver to be evident from the record. The State of Kentucky had successfully argued --- all the way to and through the federal district court --- that this rule did not apply to an experienced criminal defense attorney who presumably knew that he had a right to counsel. The Sixth Circuit disagreed, clearly unwilling to write into Faretta an exception that the Supreme Court had never recognized: "Every defendant --- regardless of his profession --- is entitled to counsel unless he waives his right to counsel." (Op. at 6.)

A rare dual habeas win

These days it seems well-nigh impossible to eke out a win in a habeas case, and even more difficult to get one in a published opinion. And so the occurrence of today's two habeas wins in two published opinions (both reversing decisions of the district court) is nothing short of astonishing.

English v. Berghuis --- Here, English was convicted in Michigan of third-degree criminal sexual conduct, based on alleged sexual conduct with a sleeping acquaintance. During voir dire, a member of the venire who was ultimately chosen as a juror in the trial failed to disclose that she had previously been the victim of sexual assault. After a winding procedural history, the Sixth Circuit faced the threshold question of the standard of review. It determined that if the state appellate court had addressed this claim at all, it had done so using the wrong standard or a less protective state standard. Accordingly, the "strong presumption" that the claim was "adjudicated on the merits" did not apply here. With a less deferential standard of review, the panel determined that the juror appeared to have deliberately concealed a material fact, and that the juror's disclosure would have provided a valid basis of a for-cause challenge. It reversed and remanded to the district court.

Lobbins v. United States --- In this § 2255 case, the defense attorney failed to object to a jury instruction for federal witness-tampering that lowered the standard of proof by allowing conviction if there was a "mere possibility" that the defendant's actions prevented the victim from communicating with law enforcement, rather than a "reasonable likelihood." The court was unpersuaded by the government's arguments that this mistake was harmless error, and it fell back on the general presumption that counsel is deficient when he or she fails to object to an instruction that materially lowers the burden of proof.

Habeas skeptics would note that neither petitioner had to overcome so-called "AEDPA deference," which likely accounts for the results. But those practitioners who have toiled away in the habeas salt mines are happy for whatever victories they can get.

Fraud or just a wee mistake?

After a steady stream of disappointing decisions, you wouldn't have to be a whiz to guess that the number one case in today's opinions would come out poorly for the defendants, who all ended up in hot water. Okay, okay, enough puns. Today's published opinion in United States v. Bertram et al. is about, well, urine. Urine and health care fraud.

The five defendants in this case started a company that provided urinalysis testing services for drug treatment clinics. At some point, the company's equipment broke down, resulting in a testing backlog --- a problem for a company offering their physician customers quick results to determine whether patients were abusing drugs. The company held those samples on ice, sometimes for months. When they managed to clear the backlog, they tested the now-months-old samples and billed for them. The government accused the defendants of billing for services that they knew to be medically unnecessary. The government (never opposed to gilding the lily) brought an indictment containing over 100 counts against the defendants. The jury ultimately acquitted them of more than eighty counts, but convicted of seventeen counts. 

In challenging the sufficiency of the evidence, the defendants argued that they had provided the services they billed for, they never made any material misrepresentations, and they did not omit any information that the doctors requested. Indeed, the doctors never required that the tests be performed in a specific amount of time. These might seem to be necessary facts in a fraud case, which requires proof of "any false statements or assertions that concern a material aspect of the matter in question, that were either known to be untrue when made or made with reckless indifference to the truth." It does not appear that there were any such misrepresentations here. The court disagreed, holding that when they submitted bills for services rendered many months after they were requested, the defendants knew that the tests were no longer necessary and failed to inform the doctors of this fact. This omission was itself fraudulent, and the court affirmed the convictions.

One of the defendants successfully appealed his sentence, however, arguing that the court erred in imposing a manager enhancement because there was no evidence that he exerted control over any other criminal participant. The appeals court agreed, noting that the district court's conclusion that "everybody's making decisions in this case" did not suffice to justify the enhancement. Once again, the Sixth Circuit requires express findings on the record that a defendant exerted control over another criminal participant.

It's an overall disappointing decision, but if you're looking for a helpful sentencing argument then urine luck.

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.

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.

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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