U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions & Other News for the Week of November 7-11, 2022--

Supreme Court Happenings for the Week ending November 11, 2022 –

It was a big week for relists: From last Friday, the court granted all four of last week’s new relists. And on Monday, the court denied review in five of the returning relists, four of them with justices filing opinions dissenting from the denial of review. Most noteworthy here: In Buffington v. McDonough, a case that asked the Supreme Court to overrule Chevron v. Natural Resources Defense Council, Justice Neil Gorsuch delivered what may be his most full-throated criticism of Chevron deference to date, observing that strong-form deference has “fallen into desuetude.” And in Chinn v. Shoop, Justice Ketanji Brown Jackson filed her first-ever opinion since her elevation, writing that the Ohio Supreme Court had applied too stringent a standard of materiality in reviewing death-row prisoner Davel Chinn’s claim that the prosecution had withheld exculpatory evidence.

The Supreme Court announced on Thursday afternoon that it will weigh in on what it means to commit identity theft. After holding their private conference a day early because today is a federal holiday, the justices released a one-sentence order list that added one new case to their merits docket for the 2022-23 term: Dubin v. United States. The defendant in the case is David Dubin, who was convicted of Medicaid fraud. As the dispute comes to the Supreme Court, Dubin is challenging a separate conviction under a federal law that makes it a crime to use another person’s identity in the process of committing another crime. Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld Dubin’s conviction and sentence, and on rehearing a deeply divided full court affirmed that decision. Dubin appealed to the justices in June, and they agreed on Thursday to take up his case, which will likely be argued sometime early next year.

The Justices will release more orders from Thursday’s conference on Monday, Nov. 14, at 9:30 a.m.

Favorable Federal Circuit Opinions for the Week of November 7-11, 2022 –

4th Circuit

United States v. Davis, (No. 16-7671)(4th Cir. November 10, 2022)-- Davis filed a motion under 28 U.S.C. § 2255, challenging his 18 U.S.C. § 924(c) conviction for using a destructive device in furtherance of a crime of violence. The district court denied his motion and Davis appealed. Because the version of § 844(f) that Davis was convicted under criminalized the arson of property fully owned by the defendant, and not just that of the property “of another” as required by § 924(c), it is not categorically a crime of violence. It therefore cannot serve as the predicate crime for Davis’s § 924(c) conviction. The Court reversed and remanded for further proceedings.

7th Circuit

United States v. Moore, (No. 21-2485)(7th Cir. November 7, 2022)– Moore was sentenced to 120 months in federal prison for multiple drug offenses. One factual foundation for the sentence was the district court’s finding that 55.6 grams of methamphetamine found in Moore’s home were 100% pure. Moore appealed, arguing that a chemist’s affidavit that he submitted was “some evidence” sufficient to call the purity finding into question and that the government failed to support the finding on purity. See, e.g., United States v. Mustread, 42 F.3d 1097, 1101 (7th Cir. 1994) (if defendant produces “some evidence” that calls information in presentence report into question, government bears burden of persuasion on factual issue). Moore contended that the district court erred by placing a burden on him to perform independent testing and by assuming, without supporting evidence, that the Drug Enforcement Administration’s methods for testing purity are reliable and were applied correctly in Moore’s case. However, the Court agreed with Moore. Because Moore provided “some evidence” questioning whether the alleged purity of the methamphetamine sample was reliable, and because the government submitted no evidence in response, the district court erred when it accepted the government’s unsupported assertions and effectively shifted the burden of persuasion to Moore. On remand, the district court may not rely on the test results without requiring the government to furnish affirmative support for their reliability and allowing Moore to challenge that evidence. Moore’s sentence was vacated and the case remanded for re-sentencing.

9th Circuit

Jones v. Ryan, (18-99005)(9th Cir. November 7, 2022)– The panel filed an amended opinion, denied a petition for panel rehearing, and denied on behalf of the court a petition for rehearing en banc, in a case in which the panel, applying the appropriate standards pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), reversed the district court’s judgment denying Danny Lee Jones’s habeas corpus petition challenging his Arizona death sentence, and remanded to the district court with instructions to issue the writ. In Claim 1, Jones asserted that his trial counsel was constitutionally ineffective by failing to request a mental health expert in advance of the sentencing hearing. The panel held that the state court record demonstrates that trial counsel was constitutionally ineffective by failing to secure a defense mental health expert, and that, pursuant to 28 U.S.C. § 2254(d)(1), the Arizona Supreme Court’s contrary conclusion was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. The panel concluded that there is at least a reasonable probability that development and presentation of mental health expert testimony would have overcome the aggravating factors and changed the result of the sentencing proceeding. The panel therefore concluded on de novo review that Jones demonstrated Strickland prejudice, and, accordingly, reversed the district court’s denial of relief on Claim 1. In Claim 2, Jones asserted that his trial counsel was constitutionally ineffective by failing to seek neurological or neuropsychological testing prior to sentencing. The panel wrote that counsel’s failure to promptly seek neuropsychological testing ran contrary to his obligation to pursue reasonable investigations under Strickland, and in particular, his obligation to investigate and present evidence of a defendant’s mental defect. The panel therefore concluded that the PCR court’s decision that defense counsel’s performance did not fall below an objectively reasonable standard was an unreasonable application of Strickland, and that Jones satisfied § 2254(d)(1).

OTHER NEWS

Congress Will Hold A Marijuana Hearing One Week After Five States Vote On Legalization –

House lawmakers will hold a hearing next week to discuss bipartisan marijuana reform issues at the federal and state level. t’s not clear if the hearing will focus on any specific pieces of federal marijuana reform legislation, but Rep. Nancy Mace (R-SC), who serves as the GOP ranking member on the panel, previously told Marijuana Moment that she had received a “promise” from leadership that her States Reform Act (SRA) would be taken under consideration in the panel. In April, the House already passed a separate cannabis legalization bill, the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, from Judiciary Committee Chairman Jerrold Nadler (D-NY) for the second time. Rep. Jamie Raskin (D-MD), chair of the Oversight subcommittee, has also expressed interest in cannabis reform issues. He filed a floor amendment to the MORE Act to require federal agencies to review security clearance denials going back to 1971 and retroactively make it so cannabis could not be used “as a reason to deny or rescind a security clearance.” That measure was narrowly defeated in a floor vote. To mark the occasion, Sen. John Hickenlooper (D-CO) recently announced that he will soon be filing a bill to direct the attorney general to create a commission charged with making recommendations on a regulatory system for marijuana that models what’s currently in place for alcohol.

Latest Bureau of Prison’s Statistics (From BOP Website):

Fair Sentencing/Retroactive Sentence Reductions 3,968 Orders Granted to date.
Elderly Offender Home Confinement 1,209 Approved to date.
First Step Act Releases 10,635 granted to date.
Compassionate Releases/Reduction in Sentences 4,342 granted to date.

COMMENT:

With most likely a split Congress, it is difficult to know what it will do with marijuana reform legislation, but at least they are still holding hearings on it. Time will tell. Stay tuned.

A slightly better week for favorable cases with the Holiday today in the federal courts. Anyone who believes they may have a Taylor, Concepcion, Ruan, Bruen, Earned Time Credit or any other claim you believe you may have relief coming for or just want to see if we can find something that will gain you relief should opt for a Written Case Evaluation.

There were 9 new compassionate release motions granted this week and 4 others were granted relief for the Fair Sentencing Act/ Retroactive Sentence Reductions.

Anyone who thinks that they may qualify for compassionate release or any other remedy should request a Written Case Evaluation (we no longer offer Free Lookups). For the last 27 years, we have also been very successful on direct appeals, 2255 motions and 2241 Petitions, First Step Act, Compassionate Release Motions, DC Superior Court, State Post Conviction, Clemencies and Pardons, and Parole Packages to mention a few avenues for relief. We also can help you with Earned Time Credits and other specialized motions.

If you are serious about fighting your case and want us to evaluate your case to see if you may have relief coming, request a Written Case Evaluation.