Federal Prison Newsletter, Week Ending Apr 28, 2023
Elijah v. Dunbar, No. 21-7352, 2023 U.S. App. LEXIS 9592 (4th Cir. Apr. 21, 2023)
Objections to R&R Don’t Have to Be Overly Precise to be Sufficient for De Novo Review
Petitioner filed a habeas petition and claimed that the BOP was refusing to apply First Step Act credits to his sentence. After the Warden moved for summary judgment, a magistrate judge issued a report and recommendation (“R&R”) concluding that Petitioner’s petition should be dismissed. Petitioner objected to the recommendation in detail; nonetheless, the district court did not review the R&R de novo because Petitioner had only “reargue[d] his case.” After reviewing for clear errors, the district court adopted the R&R and dismissed Petitioner’s petition. Petitioner appealed.
The Fourth Circuit agreed with Petitioner that his grounds for objection were clear and thus should have prompted a de novo review of the magistrate’s R&R (and not a review for “clear error”). When no objections to an R&R are filed, or the objections don’t “reasonably alert” the district judge reviewing the R&R to the true ground for the objection, the judge may review the R&R for clear error. However, when proper objections are filed, the judge must review the R&R de novo, or anew. While the petitioner’s pro se objections appeared to simply reargue his claims, here’s why the Fourth Circuit said they were enough to trigger de novo review:
Because Elijah alerted the district court to the grounds on which he objected, the court was obligated to review Elijah’s objections de novo. It is immaterial that his objections resembled arguments he had made previously; district courts must solely consider the specificity, not the novelty, of objections to magistrate recommendations. By adopting the recommendation after only clear error review, the district court improperly elevated the magistrate’s opinion and failed to satisfy its obligations under § 636(b) and Article III.
Dale’s take: I don’t think many people know about the different standards of a district judge’s review of an R&R by a magistrate judge. As you can see here, this is important. The de novo standard of review is much more favorable toward a habeas petition, and this is what you want the district judge to do. Also note that most circuits require objections to an R&R or an appeal may be severely limited or foreclosed altogether.
Evans v. Wills, No. 21-1704, 2023 U.S. App. LEXIS 10339 (7th Cir. Apr. 27, 2023)
Think Your Habeas Case is Taking Long? Try Waiting 20 Years!
In 1998, Evans was charged with murder. In 1999 two separate juries convicted Evans of both murder and solicitation. After Illinois courts affirmed both convictions on direct appeal, Evans filed a petition for postconviction relief in state court in 2003. His petition is STILL pending. In 2019, frustrated with the delay, Evans filed a habeas petition under 28 U.S.C. § 2254 and turned to federal court for relief. He claimed that Illinois’s postconviction relief process had proven “ineffective,” allowing him to seek federal habeas relief without waiting further for relief in the Illinois courts.
The Seventh Circuit agreed with Evans and vacated the denial of relief:
The delay Evans has experienced of twenty years and counting is beyond the pale and indefensible. The exhaustion requirement is neither ironclad nor unyielding. A state-law remedy can become ineffective or unavailable by virtue of delay if the delay is both inordinate and attributable to the state. In this case, the extraordinary delay has stemmed in no small part from the state’s own conduct, both in its capacity as a respondent to the litigation and as the state trial court itself.
Dale’s take: Post-conviction cases take a long time, usually years. But 20 years? I included this case to show just how bad some courts can be. This isn’t the first case I’ve seen recently in such a posture. When is too long simply too long before you start making some noise? That’s up to you, but 12 to 18 months seems to be the general wait for a non-complex case.
Hardin v. BATFE, No. 20-6380, 2023 U.S. App. LEXIS 9938 (6th Cir. Apr. 25, 2023)
Sixth Circuit Disagrees with ATF and Holds Bump Stocks Are Not Machineguns
Under the Gun Control Act “it shall be unlawful for any person to transfer or possess a machinegun,” 18 U.S.C. § 922(o)(1). The Act incorporates the definition from the National Firearms Act: “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The ATF, which administers both statutes, previously maintained that a bump stock, which drastically increases a gun’s rate of fire, is not a machinegun part. In 2018, after a Las Vegas gunman used bump stocks attached to semiautomatic rifles to kill 58 people and injure roughly 500 in approximately 10 minutes, the ATF reversed its position by promulgating the Rule, giving possessors of bump stocks 90 days to destroy or abandon their bump stocks – or else face criminal charges.
The Sixth Circuit pointed out numerous cases across the federal courts on this issue and found that they are deeply divided, with some saying bump stocks turn a gun into a machinegun, and others saying they don’t. Applying traditional statutory interpretation rules, the Court found that § 922(o)(1) was “ambiguous” and therefore had to be read in favor of the person being charged under the law:
Bump stocks may well be indistinguishable from automatic weapons for all practical purposes. But it would be dangerous to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. Because the relevant statutory scheme does not clearly and unambiguously prohibit bump stocks, we are bound to construe the statute in Hardin’s favor.
Dale’s take: A conviction for possessing a machinegun because it had a bump stock may be subject to challenge under the analysis laid out by the Court in this case. If this affects you, then read this case. While it’s not a challenge to a criminal conviction, it provides a legal remedy for someone convicted of having a bump stock under § 922(o)(1).
Somers v. United States, No. 19-11484, 2023 U.S. App. LEXIS 10045 (11th Cir. Apr. 25, 2023)
Florida Supreme Court Finally Answers the Question about whether Aggravated Assault Qualifies for the ACCA
Defendant appealed the district court’s denial of his Section 2255 habeas petition to vacate his sentence of 211 months imprisonment on the ground that he was sentenced as an armed career criminal but does not qualify as one. He argued that his prior conviction in Florida for aggravated assault with a deadly weapon cannot serve as a predicate offense under the Armed Career Criminal Act (“ACCA”) because it can be committed with a mens rea of recklessness and that, without this predicate offense, he does not have three qualifying convictions, and he must be resentenced.
The Eleventh Circuit, after receiving Florida Supreme Court’s answer to the court’s certified questions, affirmed. The court wrote that it is persuaded that aggravated assault under Florida law requires a mens rea of at least knowing conduct and, accordingly, that it qualifies as an ACCA predicate offense under Borden v. United States, 141 S. Ct. 1817 (2021). Defendant, therefore, has the requisite three predicate offenses under the ACCA, and he was properly sentenced by the district court as an armed career criminal.
Dale’s take: I know some of you have been waiting on this case since 2019. Interestingly, the Florida Supreme Court decided the certified question the Eleventh Circuit sent to it in this case in November of 2022, yet the Court here waited another 6 months to make its decision.
United States v. Jones, No. 22-2312, 2023 U.S. App. LEXIS 9741 (7th Cir. Apr. 24, 2023)
Judge Finds Someone Competent to Represent Himself despite “Frivolous” Filings and Arguments and Confusion about Charges Filed
Police discovered a loaded firearm, cocaine, and more than 800 methamphetamine pills on Jones’s person and in his car during a traffic stop. Federal charges followed. Counsel declined to make frivolous challenges to the court’s jurisdiction at Jones’s request. Jones sought to represent himself. Magistrate Long conducted an extensive Faretta colloquy (to determine if he was competent enough to represent himself), covering Jones’s education, mental health, and prior legal experiences. Jones confirmed his understanding of the charges and agreed to follow the Federal Rules of Evidence and Criminal Procedure. He claimed that he understood the perils of self-representation, which Long explained in detail. The court allowed Jones to represent himself and appointed his public defender as standby counsel.
Jones began his defense by challenging the court’s jurisdiction in frivolous filings, advancing “sovereign-citizen” arguments. Concerned with the incoherence of his filings, the government requested a second Faretta colloquy. The district judge then conducted the colloquy and Jones insisted he did not “consent” to jurisdiction and would not participate in his trial. While he acknowledged understanding the “letter” of the charges against him, he also expressed confusion about whether the proceedings were criminal, civil, administrative, or even “statutory maritime.” The judge somehow concluded that Jones’s waiver of counsel remained valid. Jones did not deliver opening or closing statements, cross-examine witnesses, or lodge any objections. His testimony had no bearing on the charges against him.
On appeal, the Seventh Circuit affirmed his conviction and 138-month sentence, also finding that Jones knowingly and voluntarily waived his right to counsel.
Dale’s take: I included this case to show that Faretta hearings are useless in determining someone’s competency to defend themselves. Instead, counsel should request a competency hearing when it is questionable whether someone can represent themselves, such as the defendant in this case. He may have a valid IAC claim, if argued properly in a § 2255 motion.
United States v. Eddington, No. 22-1076, 2023 U.S. App. LEXIS 9730 (10th Cir. Apr. 24, 2023)
Federal Judge’s Wrongful Interpretation of State Law Cancelled 4-Level Enhancement for FIP
Defendant appealed the 84-month sentence he received after pleading guilty to one count of being a felon in possession of ammunition. The sentence was at the bottom of the 84 to 105-month Guidelines range. On appeal, he contended the district court erred in imposing this sentence because it improperly applied a four-level enhancement to his base offense level for possessing ammunition “in connection with another felony offense” under U.S.S.G. § 2K2.1(b)(6)(B). Because he had properly objected to the 4-level enhancement, The Tenth Circuit determined that the district court procedurally erred when it applied a four-level enhancement. Accordingly, the Court vacated Eddington’s sentence and remanded for resentencing.
Dale’s take: This is an interesting case because the federal judge was required to analyze the underlying state charge of aggravated assault (that occurred during the federal offense) to determine whether the possession of ammunition facilitated that charge. Because the judge wrongly applied state law, and because the defendant objected to the enhancement, it was an abuse of discretion to apply the 4 levels.
United States v. Diaz, No. 21-3340, 2023 U.S. App. LEXIS 10139 (3d Cir. Apr. 26, 2023)
Court Doesn’t Have “Inherent Authority” to Impose Punishment Not Authorized by Law
Diaz was convicted of conspiracy to distribute and possess with intent to distribute heroin and cocaine and was sentenced to 33 months’ incarceration followed by 36 months’ supervised release. During that period of supervised release, Scranton Police Officers responded to a report of a physical, domestic incident involving Diaz’s then-girlfriend, Fernandez. Other violations of supervised release included possessing and using marijuana. During a probable cause and detention hearing, the magistrate judge heard testimony from Fernandez that she was not scared of Diaz, but he still imposed a no-contact condition. Fernandez’s testimony in the detention hearing was proven false since Diaz had called Fernandez and persuaded her to recant her statements to the police.
At the final supervised release violation hearing, the court sentenced Diaz to the statutory maximum of 24 months’ incarceration followed by another two years’ supervised release. It also reimposed the no-contact order to apply during Diaz’s incarceration and his new term of supervised release. On appeal, the Third Circuit vacated the no-contact order. While a court has “inherent authority” to administer justice in its court, it does not have authority to impose a penalty not authorized by law:
If such an exercise of inherent authority were allowed, a district court could use the justification of “administration of justice” to impose many different types of punishment that are not provided for by federal statute. A district court does not have unfettered discretion in preventing the administration of justice, particularly in situations where the statutes delegate specific authority to the BOP.
Dale’s take: The Court here disagreed with other circuits that have held the exact opposite, and provided solid reasons on why allowing a district court to impose extra penalties that aren’t in the statute would open the doors for abuses of power. With such a split, this could be fertile grounds for raising such a challenge.
United States v. Sykes, No. 21-6067, 2023 U.S. App. LEXIS 9757 (6th Cir. Apr. 24, 2023)
Requirement under Law for Online Companies to Report Illegal Activity Doesn’t Make Them an “Agent” of the Government
The National Center for Missing and Exploited Children (NCMEC) forwarded to the Knoxville Police a CyberTip from Facebook reporting that a 43-year-old male appeared to be using Facebook private messages to entice a 15-year-old female (M.D.) to produce and send child-exploitation images and engage in sexual activity. In a motion to suppress, the defendant argued that NCMEC is a government entity and that Facebook had become NCMEC’s “agent” by searching his account and forwarding messages to NCMEC. This was rejected. On appeal, the Sixth Circuit affirmed the conviction and 45-year sentence. The Court found that Facebook’s report to NCMEC did not create an “agency” relationship because it was no different from someone calling 911 to report a crime. Though it was argued that Facebook was required by law to file the report with NCMEC, the Court said this was not enough to make Facebook an agent of the government.
Dale’s take: There have been successful challenges to NCMEC’s actions in warrantless searches into people’s computers and online accounts over the years. I think there may be more to the argument about an online company being an “agent” of the government because it is “compelled” to report illegal activity on its platform, if raised in a proper case.