Case o' The Week: Blackstone on the Law -- Blackstone and Timeliness of Johnson guideline Section 2255 claims

   Sir William would be disappointed.

United States v. Blackstone, 2018 WL 4344096 (9th Cir. Sept. 12, 2018), decision available here.

Players: Decision by Judge Clifton, joined by Judges Schroeder and M. Smith. Hard-fought appeal by AFPD Alyssa Bell, Central District of California FPD.

Facts: In ’99, Blackstone was convicted of Hobbs Act robbery and a § 924(c), and sentenced under the (then-mandatory) guidelines to 290 months. Id. at *1-*2. Two priors were treated as “crimes of violence” that triggered Career Offender. Id. His appeal and habes were denied.

  Within a year of Johnson, Blackstone obtained permission to file a second-or-successive § 2255. Id. Blackstone filed a § 2255 in the district court, and the motion was denied on the merits. Id.

  Back up in the Ninth, the government then argued that Blackstone’s motion was untimely. Id. at *3. On appeal, the government contended that “the Supreme Court’s decisions in Johnson and Welch have not authorized a motion by Blackstone at this point because those decisions pertained to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), and that neither addressed whether Johnson applies to other clauses providing for enhanced sentences based on convictions for crimes of violence.” Id. at *3.

Issue(s): “[A] right newly recognized by the Supreme Court may open the door to filing a § 2255 motion later in time. The question presented in this case is whether Johnson and Welch have opened that door.” Id. at *3.

Held: “We conclude that they have not.” Id.

  “[T]he Supreme Court has not yet recognized the right asserted by Blackstone. The Supreme Court has not held that the mandatory Sentencing Guidelines are subject to this vagueness challenge. As a result, Blackstone’s current motion is not timely under the statute. In reaching that conclusion, we agree with similar rulings by three other circuit courts that have considered this issue. We deny a similar challenge by Blackstone to a conviction and sentence under 18 U.S.C. § 924(c) for use of a firearm during a crime of violence because the Supreme Court has not recognized that right, either. We affirm the denial of Blackstone’s motion.” Id.

Of Note: This is a terrifically disappointing opinion. As the Ninth’s Johnson warriors have quickly pointed out, the decision relied on the Tenth’s opinion in Greer. See id. at *5. Blackstone failed, however, to wrestle with how Dimaya affected Greer – or acknowledge that the Tenth itself has now granted rehearing in Ward based on Dimaya (the Tenth had previously dismissed Ward based on Greer).

  The Ninth is now crossways with Cross, a Seventh Circuit case, may soon be sideways with the Tenth in Ward, and is a step behind the Supremes after Dimaya.

  Blackstone should go en banc.  

How to Use: To add salt to the wound, in our view the Ninth stretches to resuscitate the government’s “timeliness” argument. On appeal, Blackstone argued that the government did not raise this argument in the district court. See id. at *4 & n.2. The Court reassures us that the government had argued that the petition was time barred: this appellate theory was just an “alternative argument to support . . . a consistent claim.” Id.

  Until the Blackstone en banc and certiorari dust settles, read footnote 2 closely and take a hard look at the government’s district court claims in your Johnson cases. If the government failed to raise a statute of limitations defense in the district court, or conceded timeliness, the Blackstone resurrection of a waived government claim may be avoidable in your case.  

                                               

For Further Reading: In the recent Newton case, a panel including Judges Berzon and Friedland rejected a Johnson claim based on the controlling Watson decision. See mem. dispo here. Notably, the Newton panel avoided the timeliness issue. See id. at 2 fn. 1.

  Of greatest interest, however, it appeared that during the oral argument Judges Berzon and Friedland may have a different view of the timeliness issue, than the Blackstone panel. See oral argument here, starting at 16:25. 

The Honorable Judges Friedland and Berzon

   Here’s hoping that reasonable minds in the Ninth will differ, on Blackstone’s new barrier to our clients’ day in court.

Image of Sir William Blackstone from https://en.wikiquote.org/wiki/William_Blackstone

Image of the Honorable Judges Friedland and Berzon from https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000014205 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Brown and Blue and Read All Over - Bud Ray Brown and Federal Escape Charges (from State Jails!)

  No good deed goes unpunished (by a federal prosecutor).

United States v. Bud Ray Brown, 2017 WL 5586562 (9th Cir. Nov. 21, 2017), decision available here.

Players: Decision by visiting First Circuit Judge Lipez, joined by Judges Wardlaw and Owens.  

Facts: Brown was serving a federal sentence when Washington dragged him into state custody on a writ ad prosequendum (related to a state murder charge). Id. at *1. While Brown was in a county jail, a rope made out of bedclothes was discovered hanging out of his cell -- the window itself was gone. Id.

  [Ed. note: watch the fascinating video about this attempt at this link. An anorexic octopus couldn’t escape through the five-inch-wide window slits at the Spokane County jail].

  Brown’s cellmate, Henrikson, was facing federal charges. When Henrikson went to federal trial, the AUSA tried to admit this attempted escape as evidence of guilt. Id. Brown exonerated his cellie with a handwritten declaration, where Brown took full blame for the attempted escape. Id.

  The feds then spun around and indicted Brown for attempted escape, from a county jail. Id. Brown entered an unconditional plea of guilt to the charges. Id.

Issue(s): “For the first time in this circuit, we address the impact of a writ of habeas corpus ad prosequendum on the question of whether an inmate serving a federal sentence remains under ‘the custody of the Attorney General’ as per 18 U.S.C. § 751(a) when he is held at a state-run institution pursuant to the writ. [ ] Brown appeals the district court’s denial of his pre-plea motion to dismiss, filed, in part, on the ground that he was not in federal custody as a matter of law at the time of the attempted escape.’ Id. at *1.”

Held: “We now hold that Brown remained under the custody of the Attorney General for purposes of § 751(a) despite his incarceration at a state-run jail, and affirm the judgment of the district court in full.” Id.

Of Note: Wait - why did the AUSA bother to charge Brown with federal attempted escape (and from a state jail, to boot?) After all, the federal attempted-escape indictment didn’t come down until five months after the attempt to escape from county jail was thwarted. Id. at *4. (Plus newscasters and jailers couldn't keep a straight face when trying to describe this inane escape attempt). 

  A single, critical fact changed before the AUSA decided indict a federal attempted escape (from a local county jail): Brown’s handwritten confession offered in his cellmate's trial, taking the blame for the attempted escape and exonerating his cellie.

  Despite this troubling history, the Ninth summarily rejects Brown’s prosecutorial vindictiveness claim in five brief paragraphs. Id. at *4. There is not even the solace of dicta, worrying about the impact of this AUSA’s actions on the integrity of federal criminal trials.

  Brown sends a chilling message to witnesses with the temerity to testify for the defense: a federal indictment may be your reward. Use Brown for your Sixth Amendment fight for defense-witness immunity. The Ninth has now documented the very real dangers that await witnesses who dare to speak up for our clients.

How to Use: The silver lining in this opinion is welcome language on the ability to even take up this appeal, despite the fact that Brown did not have a conditional guilty plea. The Ninth helpfully explains that Brown’s core appeal is a jurisdictional claim, “challenging a conviction independently of factual guilt.” Id. at *2. It is therefore not precluded by the Fed. R. Crim. 11(a)(2) bar on appeals after unconditional pleas. Id. Helpfully, the opinion then collects other issues that dodge the appellate bar after unconditional pleas. Id. at *2 & n.2. 

  Most notably, the prosecutorial vindictiveness claim described above is tackled by the Ninth on appeal. Interesting.

  The take-away? With a solid jurisdictional hook to get you in the Ninth’s door, looks like ancillary (but related) arguments can avoid the 11(a)(2) bar – despite an unconditional plea. 

  Very welcome news, in a world where the Feds seem increasingly desperate to shut down all defense appeals.

                                               

For Further Reading: Feeling blue? Senators are, too. 
  The longstanding “blue slip” rule allowed Senators to have a meaningful say in judicial appointments. Last week, Senator Grassley (R-Iowa) announced that confirmation hearings would be going forward for two circuit nominees, despite the absence of blue slips (including one missing from a GOP Senator). See article here.

Image of the Spokane County jail windows and bedclothes-rope from this case, from http://www.krem.com/news/crime/tiny-jail-windows-deny-masterminds-escape/84305621

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: Time for Land's End - McCandless and Bail Pending Habeas Resolution

Black Friday and Cyber Monday -- a fine time for the Ninth to be mulling Land's end.

United States v. McCandless, 2016 WL 6647768 (9th Cir. Nov. 10, 2016), decision available here.

Players: Per curiam decision with Judges Wallace, Farris, and Watford. Hard-fought appeal by Hawaii Federal Public Defender Peter Wolff and First Assistant Alexander Silvert.

Facts: McCandless, a Career Offender, is serving a 145-month sentence. Id. at *1. He received a § 5K1.1 departure on his original sentence: if the same percentage reduction was applied to his post-Johnson sentence, his term would be an (already-served) 71 months. Id. The district court stayed its decision on McCandless’s Johnson habeas petition pending Beckles. Id. at *2. The court then denied McCandless’s motion for bail.

Issue(s): Is a district court’s order denying bail pending resolution of a habeas decision a final decision subject to review under 28U.S.C. § 1291, or otherwise appealable under the collateral order doctrine?

Held: “Our precedent holds that a district court's order denying bail pending resolution of a habeas petition is not a final decision subject to review under 28 U.S.C. § 1291 and is not otherwise appealable under the collateral order doctrine. Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989) (per curiam).” Id. at *2.

Of Note: Having found the bail order was not appealable, the panel construed this case as a petition for a writ of mandamus – then denied it under the high mandamus standard. Id. at *2 (discussing Bauman’s "exceptional circumstances amounting to a judicial usurpation of power” standard). The problem, however, was the fundamental threshold issue -- the appealability of the district court's bail order.

  The Ninth, respectfully, has it wrong.

  The panel itself flagged this problem, conceding that the Ninth is really alone on a “lopsided split”: six other circuits have all held that an order denying bail pending resolution of a habeas petition is appealable. Id. at *2 & n.1. 

  What Ninth decision handcuffed this three-judge panel and forced this outcome? Land, a dusty two-paragraph opinion, where the habeas petitioner does not appear to have been represented. Ironically, the Ninth itself has parted ways with the gist of Land, correctly holding that the denial of bail in connection with probation revocation proceedings is appealable under the collateral order doctrine. See United States v. Loya, 23 F.3d 1529,1530 n.1 (9th Cir. 1994).

  McCandless should go en banc, the Court should overrule Land, and the Ninth should end its lonely outlier status on this important issue.

How to Use: For Johnson warriors watching clients overserve illegal sentences while stays stall for Beckles, McCandless is a discouraging outcome. Even under the tough mandamus standard, however, hope remains.

  McCandless argued that an original § 5K1.1 reduction, applied to his post-Johnson sentence, would have meant that he was overserving his custodial term. Id. at *3. The Ninth rejected that argument as “entirely speculative.” Id. 

   We have no shortage, however, of Johnson petitioners who are currently overserving their vanilla Guideline terms, when the correct post-Johnson calcs are applied. If your client is overserving a post-Johnson guideline term (without departures or variances), don’t let McCandless dissuade you from bringing a mandamus petition on a bail denial. Even if the Ninth doesn’t correct its Land precedent on the appealability of bail orders, there still may be mandamus hope for a subset of petitioners with “clean” Johnson overserving claims.

                                               

For Further Reading: District courts should not punt on habeas decisions, staying cases while SCOTUS lumbers towards its Beckles decision. So says the Tenth Circuit in a string of recent enlightened decisions. See e.g., United States v. Smith, 2016 WL 6609499 (10th Cir. Nov. 9, 2016) (mem.).

  That was, we thought, also the longstanding Ninth rule, based on a thoughtful opinion penned by Judge Thompson: United States v. Yong, 208 F.3d 1116,1121 (9th Cir. 2000) (“The writ of habeas corpus, challenging illegality of detention, is reduced to a sham if ... trial courts do not act within a reasonable time . . . A long stay also threatens to create the perception that courts are more concerned with efficient trial management than with the vindication of constitutional rights.”) (quotations and citations omitted).

  Sadly, and despite Yong, the Ninth has proven far more tolerant of stays than the Tenth.  See, e.g., United States v. Dunlap, No. 16-16271 (Oct. 20, 2016) (Ord.) (“This appeal is dismissed for lack of jurisdiction because the district court’s order staying proceedings pending the Supreme Court’s decision in Beckles v. United States is not appealable as a final judgment or as an order that comes within the collateral order doctrine.”)

   How many petitioners will overserve unlawful terms, as petitions are back-burnered while Beckles is mulled by the Supreme Court? Law students looking for a Note subject should take a close look at the Johnson litigation experience. As Judge Thompson correctly predicted in Yong, it’s tough to vindicate constitutional rights when petitioners can’t pry decisions from the federal courts.

Image of “Lands’ End” from https://www.paypal-gifts.com/media/catalog/product/cache/1/small_image/9df78eab33525d08d6e5fb8d27136e95/l/a/landend.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Give Unto Others (or Go to Jail) - Inouye and Restitution Orders

 Tithe 10% to the Church -- or face the consequences on judgment day.

  Then give 8% to the Feds -- or face the consequences on judgment day.

United States v. Inouye, 2016 WL 2641109 (9th Cir. May 10, 2016), decision available here.

Players: Per curiam decision with Judges Graber, Bybee, and Christen. Hard-fought appeal by Federal Public Defender Peter Wolff, District of Hawaii.

Facts: Inouye pleaded guilty to wire fraud. Id. at *1. He was sentenced to one month in prison, concurrent terms of supervised release, and was held joint and severally liable for over $200,000 in restitution. Id. The order had the rate of repayment to be set by the Probation Office, “but no less than 10% of his gross monthly income . . . .” Id. at *1. While on supervised release, Inouye started making payments, then stopped, then lied and assured his PO “the checks were in the mail.” Id. Because Inouye had no job, had barely ceased being homeless, and had significant debts, the defense and the government agreed that the repayment schedule should be set at zero, or a nominal fee. Id. 

  At the Form 12 hearing, however, the court sentenced Inouye to a day of custody, 59 months of supervised release, and future restitution at 8% of gross monthly income. Id. Because the government had agreed to no, or nominal, restitution, the court appointed the “Maryland Crime Victim’s ResourceCenter, Inc.” as amicus curiae. Id.

Issue(s): “On appeal, Inouye argues that the district court abused its discretion when it imposed an 8%-of-gross-income restitution schedule because it considered his projected future earnings and drew inferences about Inouye’s finances with ‘no support in the record. . . . The government has changed its position on appeal and now supports the judgement below.” Id. at *2.

Held: “The district court did not abuse its discretion in setting Inouye's restitution schedule at 8% of his gross monthly income. When assessing whether a restitution schedule under 18 U.S.C. § 3664(f)(2) was an abuse of discretion, we follow a two-step inquiry: First, we determine whether the lower court applied the correct legal rule, and second, we determine whether the application of that rule or standard was illogical, implausible, or without support from any inferences that can be drawn from the record. United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir.2009) (en banc); see also United States v. Booth, 309 F.3d 566, 575 n. 6 (9th Cir.2002) (“A restitution order is reviewed for abuse of discretion if it is within the bounds of the statutory framework.”). Inouye fails to make out a case at either step, so we affirm.” Id. at *3.

Of Note: Amicus “Victim’s Resource Center” argued that the Ninth lacked jurisdiction, because of an appellate waiver in the original plea agreement. Id. at *2. Thankfully, the Court rejected all of the arguments challenging the right to appeal a sentence for a supervised release violation. Id. The Ninth agrees with other Circuits that have considered the issue: “A generic appellate waiver does not waive the right to appeal modification or revocation proceedings.” Id.

How to Use: Eight percent of monthly income, for a guy reduced to living rent-free with his aunt, id. at *1, seems like a particularly harsh restitution order (notably, the Hawaiian AUSA apparently agreed). 

  When staving off Inouye in district court, note some unusual facts that may help distinguish the case. Inouye was 36, had no substance abuse problems, was healthy, had been steadily employed throughout his life, and had – for the most part – remained employed during most of his period of supervised release. Id. at *1. Not our typical indigent client. 

   Moreover, remember – as emphasized by the Ninth – “8% of $0.00 is “$0.00.” If this restitution order had been an amount – instead of a percentage – this rate may not have fared as well.

                                               

For Further Reading: What do District Judge Charles R. Breyer, and new San Francisco Police Chief Toney Chaplin, have in common? They both think S.F. cops need body cams. See “For Further Reading” available here; see also “New San Francisco Police Chief Top Priorities: Body Cameras, Use of Force,” available here.  

 

Image of “tithing” from http://cdn.biblemoneymatters.com/wp-content/uploads/2008/02/tithe.png

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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