Case o' The Week: An Element-ary Outcome - Allen and Actual Innocence Exception to Habeas bars

News flash: if an element is missing, the defendant is “actually innocent.”

 

The Hon. Judge William Fletcher

  (Oh, that crazy Ninth).

Allen v. Ives, 2020 WL 878523 (9th Cir. Feb. 24, 2020), decision available here.

Players: Thoughtful decision by Judge W. Fletcher, joined by Judge Christen. Dissent by Judge Callahan. 

  Admirable win for D. Oregon AFPD Elizabeth Daily.  

Facts: In the 90’s Allen pleaded guilty to gun and drug charges. He was sentenced to 322 months (!?!) as a Career Offender under the mandatory guidelines. Id. at *2. In 2017, he filed a § 2241 claim. Id. He argued that Mathis and Decamps were retroactive, and that his marijuana sales predicate no longer counted. Id. He thus argued that he was “innocent of being a Career Offender.” Id.

  The court rejected the petition for lack of jurisdiction, finding that career offender errors were “purely legal” and had “nothing to do with factual innocence.” Id.

Issue(s): “[  ] Allen appeals the district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition for lack of jurisdiction. Allen contends that he is ‘actually innocent’ of his sentence as a career offender; that the remedy provided by 28 U.S.C. § 2255 is ‘inadequate or ineffective’ to test his claim of actual innocence; and that the district court may therefore entertain his § 2241 petition.” Id. at *1. “The government conceded at oral argument that if a petitioner is actually innocent of a predicate crime for career offender status in the sense that he did not commit the state law crime of which he was convicted, Bousley applies. In that event, the petitioner would have a claim of actual innocence cognizable under § 2241 . . . . The question before us, then, is not whether a petitioner who did not commit a predicate crime of which he was convicted may challenge his career offender status under § 2241. The government has conceded that he may do so. Rather, it is the closely related question whether a petitioner who committed a crime that is not a predicate crime may challenge his career offender status under § 2241.” Id. at *4.

Held: “We conclude that Allen’s claim of actual innocence is cognizable under § 2241. We therefore reverse the district court’s dismissal for lack of jurisdiction and remand.” Id. at *1. “In Marrero, we left open the question whether a petitioner may ever be actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch. . . . We now reach that question and hold that Allen has made a claim of actual innocence that permits jurisdiction over his § 2241 petition. If Allen prevails on the merits of his claim that his . . . marijuana conviction was not a predicate conviction for career offender status under the Guidelines, the factual predicate for his mandatory sentencing enhancement did not exist. That is, he is actually innocent of the enhancement. In that case, it is beyond dispute that he is not, and was not, a career offender.” Id. at *4.

Of Note: Nice win, but not a surprising result. This decision of first impression in the Ninth hews closely to the lead of the – drum roll please – that zany Fourth Circuit! Id. at *5. 

  As Judge Fletcher correctly explains, it is hard to imagine a different outcome for a mandatory Guideline case, after SCOTUS’s decision in Alleyne (holding that a fact that increases a mandatory minimum sentence is an ‘element’ of the offense.”) Id. at *4.

How to Use: Another nice holding? “We take the opportunity to clarify that Mathis and Descamps apply retroactively when a court reviews a criminal judgment in the course of addressing a § 2241 petition or a first § 2255 motion.” Id. at *6. 

  Tuck that welcome nugget away, for use on another habeas day.

                                               

For Further Reading: Since Tuesday of last week, the Federal custodial facility at FDC SeaTac has been locked down for visiting, on coronavirus fears. See summary here. 

   The WD Wa District Court is now effectively closed. See order here. 

  The Ninth has cancelled all en banc arguments in S.F. next week. See notice here. 

  An FBI employee of the S.F. field division just tested positive for COVID-19. See article here. 

   San Francisco Mayor Breed just issued “aggressive” recommendations to reduce the spread of COVID-19 – including cancelling the St. Patrick’s Day parade. See News Release here. 

   Today it was announced that Oakland will be the port receiving the Grand Princess cruise ship, carrying over 3,500 passengers and cruise members, twenty-one of whom are positive for COVID-19. See article here. 

  Senator Kamela Harris is very interested in how the Feds are dealing (or not dealing) with  COVID-19 in the jail and prison populations. See Senator Harris Letter here. 

  So, when will COVID-19 hit Santa Rita Jail, and impact the ND Cal District Court? 

   For a sobering piece on the custodial “petri dish” in which our NorCal clients are detained, see a SacBee article here.  

Image of the Honorable Judge William Fletcher from https://cgc.law.stanford.edu/clc-spotlight/clc-1-201806-interview-1-jordan-corrente-beck/

Image of Florida Rep. Matt Gaetz in gas mask from https://www.clickorlando.com/news/2020/03/05/florida-congressman-wears-gas-mask-during-coronavirus-vote/ 

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

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Case o' The Week: Ninth Affirms an LWOP Flop -- Briones and Miller Sentencing of Juvenile Offenders

“The majority accuses me of retrying Briones’s case rather than reviewing it as an appellate court should.  . . . But it is the majority that has invented a basis for the sentence which cannot be found in the record. The reason courts of appeals accord great deference to a district court’s sentencing decision is that “[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than ... the appeals court.” Rita, 551 U.S. at 357–58, 127 S.Ct. 2456. Unlike the majority, I would take advantage of that expertise by remanding for an actual determination of Briones's incorrigibility  rather than attempting to divine one by reading a transcript through squinted eyes.”

United States v. Briones, 2018 WL 2223819, *13 (9th Cir. May 16, 2018) (O’Scannlain, J., concurring in part and dissenting in part), decision available here.

The Hon. Judge Diarmuid O'Scannlain

Players: Decision by Judge Rawlinson, joined by D.J. Ezra. 

  Partial concurrence and partial dissent by Judge Diarmuid O’Scannlain.  

Facts: Briones was a gang leader. Id. at *1. When he was 17, he planned the robbery of a restaurant that resulted in a homicide (although he was not the shooter). Id. He also planned a Moltov cocktail assault on a rival gang member’s home: he didn’t throw them, no one was killed. Id.

  He was prosecuted on multiple offenses, and the Feds offered him 20 years -- the deal fell through because his father, a co-D, rejected the deal. Id.

  At sentencing, the district judge imposed a LWOP sentence. Id.

  Fifteen years later, the Supreme Court decided Miller v. Alabama, and rejected mandated LWOP sentences for juveniles. Id. Briones filed a Miller § 2255 petition. Id. The district court vacated the mandatory life sentence and conducted a re-sentencing hearing. Id.

  At the Miller resentencing, Briones described his parents’ drug and alcohol abuse, the family’s history of criminality, the challenges he faced as a Native American attending school off of the reservation, and his inability to challenge his father when the father rejected the twenty year deal. Id. at *2. Briones explained that he had started drinking at 12, and had used cocaine and LSD as a minor before the offenses of conviction. Id. at *3. The defense urged a thirty-year sentence.

  The district court instead re-sentenced Briones to life. Id. at *3.

Issue(s): “We must decide whether the district court appropriately rejected a juvenile offender’s argument that he should not receive a sentence of life without parole.” Id. at *1.

Held: “On this record, we cannot honestly say that the district court’s imposition of a sentence of life imprisonment was illogical, implausible, or without support in inferences that may be drawn from facts in the record. . . . In other words, no error occurred and without error there can be no plain error.” Id. at *8 (internal quotations, citations, and footnotes omitted).

Of Note: In an important concurrence and dissent, Judge O’Scannlain questions the majority’s tolerance of a sentencing that does not appear to have grappled with the core Miller question, and that again produced a life sentence for this juvenile offender. Id. at *9 (O’Scannlain, J., concurring in part and dissenting in part). The dissent is well-grounded in the Supreme’s admonition that LWOP sentences are barred “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at *9 (citation omitted).

  Judge O’Scannlain explains that he “cannot agree . . . with the majority’s holding that the district court sufficiently considered Briones’s claim that he was not in that class of rare juvenile individuals constitutionally eligible for a life-without-parole sentence.” Id. at *9. He writes, “The majority reads too much into the district court’s cursory explanation of its sentence, and it divines that the district court must have adopted the rationale for its sentence suggested by the government on appeal. Although a sentencing court need not pedantically recite every fact and legal conclusion supporting its sentence, it must provide enough explanation for a court of appeals to evaluate whether or not the decision to reject a defendant's argument is consistent with law. The sparse reasoning of the district court in this case gives me no such assurance.” Id. at *10.

  To fully appreciate the significance of this remarkable dissent, take a look at another Judge O’Scannlain dissent, from an order denying rehearing en banc. United States v. Paul, 583 F.3d 1136 (9th Cir. 2009) (ord. denying rehearing en banc) (O’Scannlain, J., dissenting); see also blog entry here. The Paul dissent is written by a jurist who is generally skeptical of Circuit meddling with district court sentencing decisions.

  If Judge O’Scannlain is this troubled by Briones, the Ninth should be as well. This opinion cries out for en banc review.

How to Use: Have you represented a juvenile hammered with LWOP in federal court? If so, contact the FPD in your district – we can help explore options for a Miller § 2255.

                                   

For Further Reading: Who exactly are the “rare juveniles” the deserve LWOP sentences?

  For an accessible piece giving a general overview of that open question, see “Life After Miller: Retroactive Sentencing and the Rare Juvenile,” available here.

Image of the Honorable Judge Diarmuid F. O’Scannlain from https://www.nationalreview.com/2017/01/ninth-circuit-judge-oscannlain-senior-status/

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

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Case o' The Week: Ninth Tacks to Lee of Constitutional Issue -- Lee, Johnson, and the Sentencing Guidelines

Want to know whether Johnson applies to the guidelines?

  So does Judge Ikuta.

United States v. Lee, No. 13-10517 (9th Cir. May 6, 2016), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Bea. Dissent by Judge Ikuta. Hard-fought win for ND Cal CJA Attorney Ethan Balogh.

Hon. Judge Sandra Ikuta

Facts: Lee was convicted of distributing crack. Id. at 3. One drug prior counted as a Career Offender predicate. Id. at 4. Lee also had prior convictions under Cal. Penal Code Sections 69 (resisting executive officer), and 243.1 (battery against custodial officer). The court found both priors to be “crimes of violence” under USSG § 4B1.1(a)(3), and found Lee to be a Career Offender. Id. While on direct appeal, the Supreme Court decided Johnson (2015). The Ninth asked for supplemental briefing. Id. at 6.

Issue(s): “Lee contends that he is not a ‘career offender’ because he does not have ‘at least two prior felony convictions of either a crime of violence or a controlled substance offense.’ U.S.S.G. § 4B1.1(a). . . . [T]he issue for decision is whether either of Lee’s convictions under California Penal Code § 243.1 or § 69(a) are ‘crimes of violence’ under Guidelines § 4B1.1(a). The government does not contend that either § 243.1 or § 69 is a controlled substance offense, ‘has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1), or corresponds to an enumerated crime in § 4B1.2(a)(2). The only question, then, is whether, under the residual clause, either crime ‘otherwise involves conduct that presents a serious potential risk of physical injury to another.’ U.S.S.G. § 4B1.2(a)(2).” Id. at *6.

Held: “Because we find that neither of Lee’s convictions would qualify as a ‘crime of violence’ under our pre-Johnson caselaw, we need not address this constitutional question.” Id. at 7. 

  “We decline to decide whether Johnson’s reasoning extends to the Sentencing Guidelines, because even if it does not, we are left with the same result in this case: We must vacate and remand for resentencing because Lee’s crimes are not categorical crimes of violence . . . [W]e decline the dissent’s invitation to answer a constitutional question unnecessary to the disposition of this case.” Id. at 8 & n.2.

Of Note: Judge Ikuta agrees that Lee should win and there should be a remand, but disagrees with the majority’s reasoning. Id. at 13 & n. 5. Seems like a concurrence, but Judge Ikuta styles her opinion a “dissent.” Id. at 14 (Ikuta, J., dissenting). Whatever it is, it is worth a very close read. 

  Judge Ikuta would hold that the Guideline residual clause is so “inscrutable” that a district court can’t get it right: it is per se Guideline procedural error just to use the thing. Id. at 25-26. 

  [Ed. note: Consider that under this theory, the district judge in the Lee case -- Sentencing Commissioner Charles R. Breyer -- would be deemed incapable of divining the meaning of the inscrutable guideline on remand].

  Before she gets to the "procedural error" theory, however, Judge Ikuta opines that there is no due process (Johnson) violation when the residual clause is used, under the advisory guidelines. Id. at 14-25.

   What’s the difference between Judge Ikuta's theory of guideline inscrutability, and a holding that Johnson controls the advisory guidelines? None, for Lee – he is on direct appeal and would get a remand either way. But query whether Johnson would be retroactive to advisory guideline cases for Section 2255 motions, if the residual clause is mere sentencing “procedural error” due to “inscrutability?” (Versus running afoul of Johnson and its due process protections?) 

  This dissent, if ever adopted, would conceivably doom many Johnson § 2255 motions for advisory guideline cases. DOJ is scrambling for theories to distinguish Welch and limit its retroactivity holding solely to ACCA cases: Judge Ikuta offers one troubling approach.

How to Use: Lee uses pre-Johnson cases to first ask whether a prior would qualify as a COV. So give that a shot, as well as running the normal Johnson claims – what’s to lose? If the priors don’t qualify, you win. If they do qualify under old COV law, Johnson is still available for a due process attack. Another arrow for the quiver.

                                               

For Further Reading:  We wrongly guessed that Lee would be the Ninth Circuit case to decide whether Johnson applies to the guidelines. 

  With the issue avoided in Lee, what panel is now the lead on this question? Probably United States v. Jimmy Torres, submitted before Judges Wardlaw, Fletcher, and Murgia on Dec. 8. ‘15.

(Left to right): Hon. Judges W. Fletcher, Wardlaw, and Murgia - Jimmy Torres argument

   For a video of the very interesting Torres argument, see the Ninth's You Tube site here. 

  (By the way, what was the Feds position in Torres? “The government agrees that the . . . holding in Johnson regarding ACCA’s residual clause applies to the identically worded clause of the career offender guideline, § 4B1.2(a)(2), and to other guidelines that use the career offender guideline’s definition of ‘crime of violence,’ including Guideline § 2K2.1.”)

Image of the panel from United States v. Torres from https://www.youtube.com/watch?v=T--n7G6PrZU

Image of the Honorable Judge Ikuta from United States Courts - http://news.uscourts.gov/new-chairs-named-judicial-conference-committees, Public Domain, https://commons.wikimedia.org/w/index.php?curid=36109912

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

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