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The Habeas Citebook Ineffective Counsel

Articles by Dale Chappell

Fourth Circuit Expands Savings Clause of § 2255(e) to Include Later Retroactivity of New Rule

The U.S. Court of Appeals for the Fourth Circuit held on March 4, 2020, that the savings clause of 28 U.S.C. § 2255(e) is available even if based on a court decision that existed earlier but was not made retroactive until after the direct appeal and first motion under § 2255.

When Quentin Braswell was sentenced after his 2009 conviction for federal drug and firearm charges, the Government relied on his prior 1997 North Carolina conviction for possession with intent to sell cocaine to require the sentencing court to impose a mandatory minimum sentence of at least 10 years in prison.

Because at the time the Fourth Circuit’s rule looked at the maximum sentence any defendant could have faced for a prior North Carolina conviction, Braswell’s prior met the criteria for the federal enhancement: “an offense that is punishable by imprisonment for more than one year.”

But then United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), was decided, which held that under the North Carolina sentencing scheme, a federal court cannot assume the maximum possible for sentence for any defendant for use of a prior conviction but “may only consider ...

Congressmen File Amicus Brief Stressing Congressional Intent That First Step Act’s New Drug Laws Apply at Resentencing

Courts often look to Congress when interpreting the meaning of a law. They look at Congress’ intent behind the law and any statements made by legislators in drafting the law. This is the “legislative history” of the law and one of the main tools courts use to divine a law’s meaning.

But the tables were turned when three Congressmen who helped write the First Step Act filed an amicus brief, saying that both the government and the district court got it wrong in a case where the court refused to apply the new drug laws under the First Step Act after the original sentence had been vacated.

Senators Richard Durbin, Charles Grassley, and Cory Booker filed the bipartisan amicus brief on May 12, 2020, urging the U.S. Court of Appeals for the Ninth Circuit to reverse the district court’s decision. Judge Derrick Watson of the U.S. District Court for the District of Hawaii adopted the government’s reasoning that the new, more lenient drug laws couldn’t apply at a resentencing after a sentence had been vacated, but only at a new, original sentencing.

“The interpretation advanced by the executive board and adopted by the district court in this ...

Second Circuit: Three Important Rulings Under First Step Act

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit made three important favorable rulings on April 24, 2020, concerning relief under the First Step Act for career offenders, those who get released while their motion is pending, and the proper avenue for relief.

The case came before the Court after Jason Holloway’s First Step Act motion filed on February 1, 2019, was denied by Judge Charles Siragusa of the U.S. District Court for the Western District of New York, on the basis that Holloway was a career offender and therefore the First Step Act didn’t lower his guidelines range. After Holloway appealed, he was released in October, and the Government then argued his appeal was “moot” because his term of imprisonment was completed. The Second Circuit disagreed with all of this.

Holloway’s Appeal Was Not Moot

At the outset, the Court had to decide if Holloway’s appeal was moot, now that he was released from prison. A court must be able to grant some form of relief in order for a case to remain alive, or it’s “moot.” While Holloway filed for a reduced sentence under the First Step Act’s retroactive application of the Fair Sentencing Act ...

Eleventh Circuit Holds Hobbs Act Robbery Doesn’t Trigger Career Offender Enhancement

The U.S. Court of Appeals for the Eleventh Circuit held on March 24, 2020, that substantive Hobbs Act robbery is “too broad” and doesn’t qualify to require a sentencing enhancement under the career offender provision of the United States Sentencing Guidelines (“USSG”).

In a consolidated direct appeal by three defendants from the U.S. District Court for the Southern District of Florida, the question before the Eleventh Circuit was whether substantive Hobbs Act robbery (and not conspiracy to commit Hobbs Act robbery) meets the definition of a “crime of violence” under the USSG to apply a career offender enhancement to each defendant. All three argued that Hobbs Act robbery cannot support a career offender sentence because it includes violence toward property, as well as persons, which falls outside the career offender definition requiring violence toward only a person.

Under USSG § 4B1.1(a), a person may be sentenced as a career offender if (1) he is at least 18 at the time of the instant offense, (2) the instant offense is a “crime of violence” or “controlled substance offense,” and (3) he has at least two prior felony convictions for either a crime of violence or controlled substance offense. ...

Nebraska Supreme Court: Multiple Theft Charges for Stealing Items Belonging to Several People at Same Time and Place Violates Double Jeopardy

In a case of first impression, the Nebraska Supreme Court held on March 13, 2020, that theft from multiple owners “at the same and in the same place … constitutes a single offense,” and thus multiple theft charges violates the Double Jeopardy Clause of both the Nebraska and U.S. Constitutions.

Jonathan Sierra took part in the theft of several tools belonging to three different people from an auto shop in York, Nebraska, in 2017. He was charged with three counts of theft, among other charges, for the theft. He took his case to trial, was found guilty of those three counts, and sentenced to 16 to 20 years in prison.

On appeal to the Nebraska Supreme Court, Sierra argued that by charging him with multiple counts of theft, even though the tools taken were owned by different individuals, his convictions violate the Double Jeopardy Clause of the Nebraska and U.S. Constitutions because the theft constitutes a single offense.

The Court began by explaining that the Double Jeopardy Clause under both constitutions is designed to protect against three distinct abuses: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense ...

Colorado Supreme Court: Requiring Defense to Disclose Exhibits to Prosecution Before Trial Violates Due Process Rights

Ending what had been a “standard case-management practice,” the Supreme Court of Colorado held that a trial court may not order a defendant to turn over his defense exhibits to the prosecution prior to trial under the discovery rule because it violates a defendant’s constitutional rights under the Due Process Clause.

The question of first impression came before the Court after the La Plata County District Court ordered Joshua Kilgore to disclose his defense strategy and exhibits to the prosecution prior to the start of his criminal trial. When Kilgore objected, the trial judge overruled the objection, saying that turning over the defense’s strategy to the prosecution would “foster efficiency and allow for a fair trial.” If Kilgore didn’t comply with the order, he would not be allowed to use any exhibits or strategy not turned over to the prosecution, the court instructed.

Kilgore went straight to the Colorado Supreme Court, requesting the Court to invoke its original jurisdiction because he would otherwise suffer irreparable harm, in that the error could not be corrected later on appeal. He argued that the trial judge’s order violated his constitutional due process rights, among other rights to which he is ...

Sixth Circuit: Courts May Consider Good Prison Conduct in Sentence Reduction Under First Step Act

The U.S. Court of Appeals for the Sixth Circuit held on April 14, 2020, that a sentencing court may consider a prisoner’s good conduct in fashioning a lower sentence in light of the First Step Act.

The ruling came after John Allen filed under the First Step Act to reduce his federal drug sentence imposed in 2007, but the district court denied his request. While the court praised Allen for his “commendable” prison conduct, it stopped short of considering such conduct to reduce his sentence.

“The court’s authority to reduce defendant’s sentence is strictly limited to statutory authority,” District Judge Christopher Boyko of the U.S. District Court for the Northern District of Ohio said. He reasoned that “the First Step Act in this instance limits the court’s review to the time defendant committed the covered offense. Thus, any good behavior that occurred after the covered offense is immaterial.”

On appeal, the Sixth Circuit rejected this interpretation. Under 18 U.S.C. § 3582(c)(1)(B), a court may modify a sentence where such modification “is expressly permitted by statute,” the Court noted. While §§ 3582(c)(1)(A) and (c)(2) have “constraints” on what a court may consider in modifying a sentence after it’s ...

Sixth Circuit: District Court’s Refusal to Reduce Crack Sentence Under First Step Act Requires Justification

by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held on May 15, 2020, that the refusal by the U.S. District Court for the Eastern District of Kentucky to reduce a crack cocaine sentence under the First Step Act required the court to justify why it wouldn’t reduce the sentence, especially where the old guideline range was more than double the new guideline range under the First Step Act.

After the First Step Act was passed in 2018, Marty Smith filed a pro se letter to his sentencing court asking for counsel to be appointed to see if he would be eligible for a reduced sentence under the Act. Instead of appointing counsel, the court construed his letter as a motion under 18 U.S.C. § 3582(c)(1)(B) and denied relief. The court acknowledged Smith was eligible for relief but refused to lower his sentence, citing the “need to protect the public” because statistics showed people like Smith are at high risk for recidivism.

In 2006, Smith pleaded guilty to conspiracy to distribute more than 50 grams of crack cocaine. His guideline sentencing range (“GSR”) was 168 to 210 months, but because of a prior conviction, the Government filed ...

North Carolina Supreme Court: Giving Finger to Police Not Disorderly Conduct Justifying Traffic Stop

by Dale Chappell

A unanimous Supreme Court of North Carolina held on May 1, 2020, that waving the middle finger at the police was not disorderly conduct to justify a traffic stop and subsequent charges stemming from that stop.

Trooper Paul Stevens of the North Carolina Highway Patrol was assisting a stalled vehicle in Stanly County in January 2017, when Shawn Ellis went by in a vehicle with his arm out the window. He waved at Trooper Stevens and then gave him the finger. Stevens then pursued Ellis for about a half-mile until the vehicle stopped. When Stevens asked him for identification, Ellis initially refused. He was cited for resisting, delaying, or obstructing an officer.

In the trial court, Ellis moved to suppress the evidence, arguing there was no reasonable suspicion to justify the stop. In other words, he wasn’t committing a crime to justify the stop. That motion was denied, and he pleaded guilty, reserving his right to appeal the denial of his motion to suppress.

On appeal, the State argued the community caretaking exception to the warrant requirement under the Fourth Amendment was the basis for the stop, so Trooper Stevens didn’t need reasonable suspicion to stop Ellis. ...

New Technique Separates Mixed DNA Evidence to Tell Suspects from Victims

by Dale Chappell

When 17-year-old Barbara Blatnik was found dead in December 1987, Cleveland police found DNA under her fingernails, but it was a mixture of hers and her killer’s. At the time, DNA techniques couldn’t separate mixed DNA, and the case went cold.

However, a new technique used by Identifiers International separated the DNA in the mixture and then excluded the DNA from Blatnik. The result was a DNA sequence of the suspect. But who?

Porchlight Project, a nonprofit that helps families of the missing and murdered in Ohio, teamed up with Identifiers International to get that answer. “Using CODIS, [it’s] very difficult to separate mixtures with a clear major and minor contributor” of DNA, Colleen Fitzpatrick, Identifiers International’s founder, said. Using today’s genealogy techniques is a “game-changer,” she proclaimed. “It opens the door for so many other sexual assault cases that otherwise may never be solved.”

Fitzpatrick uploaded the suspect’s DNA data to GEDmatch and got a match for James Zastawnik. He was then arrested for Blatnik’s murder. This was the first case for Porchlight Project, and it was a success.

“They have done an incredible service to the Blatnik family and our police department,” Cuyahoga Falls Mayor ...



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