U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions & Other News for the Week of October 31-November 4, 2022 --

Supreme Court Happenings for the Week ending November 4, 2022 –

The Justices met today for their November 4, 2022 conference. We expect Orders on Monday.

On Tuesday, the Court heard argument in Jones v. Hendrix, a case that exemplifies the Gordian knot that is the federal habeas corpus statute. The underlying problem the case presents is weighty: The petitioner, Marcus DeAngelo Jones, was convicted at trial of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and sentenced to more than 27 years’ incarceration. Two decades into his prison term, the Supreme Court decided in Rehaif v. United States that Section 922(g) requires the government to prove that the defendant knew he was prohibited from possessing a firearm. The government presented no such evidence at Jones’s trial – under the law at the time, it didn’t have to in order to sustain a conviction – and although he had 11 prior felony convictions, Jones testified that he believed his record had been expunged. Thus, Jones argues, he is serving a prison term for conduct that is not a crime.

Given that Jones long ago exhausted his appeals, the question before the justices is what procedural vehicle, if any, allows him to challenge his detention. And here is where things get complicated. The traditional route for such a challenge was a writ of habeas corpus. In 1948, Congress passed 28 U.S.C. § 2255, which funneled challenges to federal convictions and sentences into a “motion to vacate” before the sentencing court. Section 2255(e) – the statute’s “savings clause” – allowed prisoners to pursue a traditional habeas corpus petition in the judicial district of their imprisonment if the motion to vacate was “inadequate or ineffective to test the legality” of their detention. Arguing for Jones, Professor Daniel Ortiz of the University of Virginia School of Law led off by cataloging the various ways the 8th Circuit went wrong, including contravening the plain language of the savings clause by holding that having a “purely formal opportunity” to challenge one’s detention is sufficient to test its legality “whether the law applied is correct or wrong.”

Chief Justice John Roberts began the questioning by acknowledging that both sides had a “conundrum” – the problem with Jones’s argument was that it was attempting to revise “the sort of claims that AEDPA wanted to preclude,” while the alternate view meant the statute has a savings clause that “doesn’t save anything.” Justice Sonia Sotomayor interjected to question why “the chief makes it an either/or.” She agreed that the savings clause “cannot be invoked every time [Section 2255(h)] applies without blowing it up,” but suggested that the courts of appeals had all embraced the “limiting principle” advanced by the government, which is that the savings clause is triggered when necessary to avoid a miscarriage of justice. Justice Neil Gorusch – after a lengthy back-and-forth about a challenge to a court martial, which dissolves after it reaches a decision – noted that in the context of ineffective-assistance-of-counsel claims, courts frequently say “counsel was effective even if he lost.” “So why,” he asked, “should a victory be equivalent to effectiveness?” Ortiz responded that an effective and adequate remedy need not guarantee victory, but must guarantee “that the correct law be applied.” Justice Ketanji Brown Jackson’s questioning proposed a way of reading the statute that relies on its overall structure, directing a court to go down a list of provisions like a roadmap of decision. “If we think about it in that way,” she noted, “then it’s sort of like [section] (e) is not really interacting with (h) and … saying anything about whether habeas rights would still exist for the purpose of this case.” Ortiz endorsed Jackson’s approach to reading the statute in this holistic, structural way. Morgan Ratner, who was appointed by the court to defend the 8th Circuit’s decision, picked up on this theme of the statute’s negative implication in her argument. She argued Congress was clear about what kinds of claims it wanted to allow in successive petitions: “Congress thought about when to allow new claims after intervening decisions of this court. It chose constitutional decisions and not statutory ones.” Both Jackson and Kagan pushed back on the notion that Congress was thinking about statutory claims at all. Kagan asked, “Why wouldn’t Congress have just said, ‘And these statutory claims are precluded’?” Ratner replied, “I think they would think it’s pretty obvious. When I tell my kids they can have a second snack but only if it’s fruits or vegetables, I don’t usually feel the need to say, but definitely not ice cream.” Sotomayor jumped in, “Yeah, a different situation,” and Jackson asked, “What if they had ice cream before?”

Sotomayor countered Ratner’s reading of the statute’s negative implication, saying “I’m reading the positive implications,” and arguing that the statute does not preclude traditional habeas relief which was always historically available to correct miscarriages of justice. Sotomayor later noted that that’s essentially what the savings clause says Congress was trying to do. Ratner responded that the procedural restrictions that AEDPA put in place – such as a one-year statute of limitations on filing a 2255 motion – would not make sense if a prisoner could get around them simply by petitioning for habeas relief once 2255 had become inadequate or ineffective because more than a year had passed. She acknowledged the justices’ concern about the harshness of AEDPA, but cited its prior precedents holding its provisions “are harsh, but they are not absurd” and so must be applied as written. She added that executive clemency serves as a “backstop” to that harshness.

Notably, throughout the argument, the liberal justices – Sotomayor, Kagan, and Jackson – asked the lion’s share of the questions and appeared to be doing the most work to untangle the Gordian knot. The court’s conservative majority was, by comparison, relatively muted (Alito and Barrett’s questions were narrowly focused, Justice Clarence Thomas asked just one brief question, and Justice Brett Kavanaugh asked none). Their lack of struggle may suggest that these justices are perfectly comfortable with a rigid application of AEDPA’s bar on successive petitions, even if that means prisoners like Jones have no meaningful vehicle to challenge their detention, and, as Roberts put it, the savings clause has “nothing to save.”

Favorable Federal Circuit Opinions for the Week of October 31-November 4, 2022 –

4th Circuit

Sanford v. Clarke, (No. 20-6712)(4th Cir. November 3, 2022)– Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts requires the state, in responding to a 28 U.S.C. § 2254 petition, to attach to its answer the portions of the state court transcripts it deems relevant. It also requires the state to include with the answer any appellate brief from the § 2254 petitioner contesting a conviction, sentence, adverse judgment or order in a post-conviction proceeding. While there were a number of ancillary issues arising from this peculiar procedural appeal, the primary inquiry was whether those Rule 5 requirements are mandatory or whether a district court has discretion to relieve the state from strict compliance. The Court vacated and remanded to the district court with the following instructions: (1) the state must file a Rule 5-compliant Answer; and (2) the district court shall determine if it has the records it requested—those “pertinent and available”— and, in this inquiry, address the state habeas records that were missing when the file was transferred to this Court.

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

Fair Sentencing/Retroactive Sentence Reductions 3,964 Orders Granted to date.
Elderly Offender Home Confinement 1,209 Approved to date.
First Step Act Releases 10,496 granted to date.
Compassionate Releases/Reduction in Sentences 4,333 granted to date.

COMMENT:

This week was another very slow week for anything favorable out of the federal circuit courts. As such, we believed that the expanded coverage of Jones v. Hendrix is very important to our cause and is why we have done the expanded coverage. We will be following that case very closely and report as developments happen.

Recently, we reported on a case out of the Western District of Texas, Midland-Odessa Division in United States v. Quiroz, (No 22-cr-00104) (W.D.Tex., September 19, 2022), wherein U. S. District Judge David Counts held that in light of New York State Rifle & Pistol Assn., Inc. v. Bruen, (No. 20-843) (S. Ct. June 23, 2022) that § 922(n) was unconstitutional. Now comes, United States v. Price, (No 2:22-cr-00097) (S.D.W.Va., Oct. 12, 2022)–wherein West Virginia defendant Price was caught with a gun that had serial numbers filed off. He was charged with being a felon-in-possession under 18 USC § 922(g)(1) and with violating § 922(k). The district court held that the felon-in-possession statute was constitutional, but that § 922(k) was not. The government could not show that the obliterated serial number statute was “consistent with the Nation’s historical tradition of firearm regulation.” It appears that the Bruen decision is going a lot further than most anticipated. So far, there has not been any courts stating that because of Bruen § 922(g) is unconstitutional, which seems to be a stretch but you never know.

Anyone who believes they may have a Taylor, Concepcion, Ruan, Bruen, Earned Time Credit or Marijuana Pardons problems 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. With regard to the recent decision in Quiroz we have been in front of Judge Counts of several occasions in Midland-Odessa, Texas. It is not surprising that he wrote such an opinion.

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.