Monday, February 28, 2011

Alaimalo v. U.S., No. 08-56349 (2-28-11) (B. Fletcher with Paez; dissent by Korman, Sr. D.J., EDNY). The petitioner is serving life sentences on numerous drug charges. Three counts were for importation of drugs from California to Guam. The convictions were in 1997; in 2003, the 9th, en banc, held that transporting drugs from one location in the U.S. to another is not importation under 21 U.S.C. 952(a). The petitioner, therefore, was convicted of crimes for which he was innocent. He had appealed from his sentence, and filed 2255 claims, all for naught. He also filed two 2241 claims. This appeal is from his second. The 9th first found that it did have jurisdiction because a 2241 claim raising actual innocence does not need a COA. Moreover, petitioner made a strong showing of actual innocence, and a change in the law, making actions not a crime, is material. The 9th sidestepped "law of the case" issues with previous panels because it held, cutting through Gordian knots of habeas and law of the case doctrine, that the petitioner did not commit the crime for which he is was sentenced. Although he is also doing life on other drug charges, the principle is important, and any adverse consequences of these convictions demand remedy. Dissenting, Korman finds that the decision to grant relief is meaningless because of the other sentences. Even putting that aside, the petitioner had filed 2255 claims, and had his shot, argues Korman. The petitioner could have raised the issue, or challenged the precedent, but did not. Korman also would find that 224's extraordinary relief would apply only when a change in statutory construction is adopted and made retroactive by the Supreme Court so that an offense becomes non-existent. That did not occur here. Law of the case also put this matter to bed. Lastly, Korman believes this rewards repeated successive filings, all abusing the writ.


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