BOP Posts (Another) New Policy on First Step Act Credits

Almost four years after the First Step Act was enacted in December 2018, the Federal Bureau of Prisons has finally adopted a formal policy on how to implement this law passed by Congress that could potentially shorten the sentences of most BOP prisoners.

In usual BOP style, the policy is long and complex — but it’s worth a read. It’s important because it clears up some of the rumors that prisoners couldn’t get retroactive credits under the First Step Act (they can), along with some other clarifications on how prisoners can qualify to earn time off their sentences for taking certain programs.

Listed below is the new policy titled “First Step Act of 2018 – Time Credits:
Procedures for Implementation of 18 U.S.C. § 3632(d)(4),” under Program Statement 5410.01 (Nov. 18, 2022), and signed by the BOP’s new director, Colette S. Peters.

Fifth Circuit Tosses Child Porn Conviction, Holds Image Wasn’t ‘Patently Offensive’

Whether a nude image of a minor is considered illegal depends on whether it’s “obscene.” But what does that mean? For decades, what has amounted to obscenity has never been clearly established by the courts. The Supreme Court did set some guidelines for obscenity cases – 50 years ago – but it still left the door open to different interpretations. This has resulted in numerous challenges to obscenity cases, including child pornography cases, with the outcome hinging largely on where the case lies and what society there thinks is obscene.

That’s why it was a surprise to me when a divided panel of the U.S. Court of Appeals for the Fifth Circuit recently held that a depiction of a minor in a sexual setting was not obscene, tossing the conviction and the attached 24-year sentence. That court is one of the most conservative in the country. Here’s how it happened.

The case arose when law enforcement found numerous drawings and stories that the defendant had been collecting and trading online for almost 30 years. The grand jury eventually charged a total of nine counts, and a jury convicted him of all those counts at trial. He was sentenced to 40 years in prison, by judge Walter David Counts III in the Western Dist. of Texas, and he appealed.

On appeal, the Fifth Circuit tossed one conviction for possession of a drawing of a minor engaged in solo sexual activity. A drawing of a nude minor is illegal under federal law if it:

depicts a minor engaging in sexually explicit conduct; and is obscene; or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and lacks serious literary, artistic, political, or scientific value.

18 U.S.C. § 1466.

The Court cited the Supreme Court’s definition of “obscenity” in Miller v. California, 413 U.S. 15 (1973), and found that this particular drawing was not illegal. There are three factors a court must consider, under Miller, in deciding whether a depiction is “obscene”:

  • whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appealed to the prurient interest,

  • whether the work depicted or described, in a patently offensive way, sexual conduct specifically defined by the applicable state law, as written or authoritatively construed, and

  • whether the work, taken as a whole, lacked serious literary, artistic, political, or scientific value.

The Fifth Circuit concluded that, while the other convictions involved minors being forced to perform sexual acts, this count of conviction did not:

[T]he charged image in Count 1 is a simple black and white pencil or charcoal drawing with minimal detail depicting an adolescent girl alone, [performing a solo sexual act]. Importantly, unlike the children depicted in the images in Counts 8 and 9, there is no indication that the subject of the image in Count 1 is being forced to perform a sexual act. The drawing is simple and utterly lacking in violent depictions. Our independent constitutional review of the image charged in Count 1 leads us to the conclusion that it is not obscene under Miller.

The takeaway is that a conviction under § 1466 requires there to be some use of force or violence in the depictions, coupled with the sexual activity. A mere depiction of a nude minor, even if sexually suggestive, is not enough, the Fifth Circuit held in this case. The Court remanded the case back to the district court to dismiss the conviction. See United States v. Arthur, 2022 U.S. App. LEXIS 28430, __ F.4th __ (5th Cir. Oct. 12, 2022).

While this result may not be helpful to the defendant in this case, since he has several other charges that could still amount to a lengthy prison sentence, it’s rather instructive for those charged under this offense on exactly what’s required for the government to obtain a conviction. Convictions for drawings of nude minors has always been a questionable topic, but I think this case sets a higher bar for the government to clear when going after these kinds of cases. Mere nudity and sexual activity in the drawing isn’t enough.

Federal Habeas Corpus: Raising Successful Habeas Claims

Criminal cases are chock full of errors. Judges err, prosecutors err, and of course defense lawyers are far from perfect. But when it comes to federal habeas corpus, not all errors are worth raising. Perhaps the most challenging part of federal habeas corpus might be coming up with claims worthy of arguing for relief.

In my books, Insider’s Guide: Habeas Corpus for Federal Prisoners, and Insider’s Guide: Federal Habeas Corpus for State Prisoners, I go into detail on the following sections about raising successful federal habeas corpus claims. Here, we will touch on some of the major points in my books.

What is a “Claim?”

Before digging through your case to see if you have errors to raise in a habeas corpus petition, first let’s go over what constitutes a “claim” for habeas corpus relief. One court has defined a habeas claim as “the underlying events, rather that the legal arguments advanced to obtain relief from those events.” Branningan v. United States, 249 F.3d 584 (7th Cir. 2001). In other words, a proper claim is the underlying facts about the error, and not so much about the case law in support of the claim.

It’s not that case law isn’t important to your claim — it is! — but to survive federal habeas review, a claim must be factually supported. It’s all about the facts when it comes to federal habeas relief.

While the federal statutes say you may attack your “custody” or “sentence,” courts have not interpreted these words narrowly, and have allowed challenges to both convictions and sentences alike, as both relate to the “custody” of a prisoner in some way. United States v. Bernard, 351 F.3d 360 (8th Cir. 2003) (collecting cases).

However, not every claim related to sentencing or custody is cognizable under federal habeas corpus. For example, a federal prisoner challenging restitution might have a great claim that counsel dropped the ball at the restitution hearing; but because such a claim wouldn’t reduce his time in prison, it’s generally not a “claim” under federal habeas corpus. United States v. Rutigliano, 887 F.3d 98 (2d Cir. 2018).

Categories of Claims

There are four main categories of habeas claims under § 2255(f), with each having certain criteria for relief. Let’s go over each in turn.

The sentence or conviction was imposed in violation of the U.S. Constitution or federal law

By far the most common category of claims is that the conviction or sentence violates the U.S. Constitution or federal law. This is because the most common habeas claim is ineffective assistance of counsel (“IAC”), arguing that defense counsel failed to provide the assistance guaranteed by the Sixth Amendment of the Constitution. For state prisoners, a common claim in addition to IAC is that the state court unreasonably applied “clearly established federal law,” defined as decisions of the U.S. Supreme Court. Often, these issues overlap.

The reason IAC is so common is because the Supreme Court has recognized that these claims are best brought under habeas corpus and not direct appeal. Massaro v. United States, 538 U.S. 500 (2003). This makes sense, because the facts of an IAC claim aren’t usually part of the criminal record, and the best claims are based on facts occurring outside the record. Federal habeas corpus is, especially for federal prisoners, the opportunity to

develop the criminal record with these facts to convince the court to grant relief.

The court was without jurisdiction to impose the sentence

“Jurisdiction” has many different meanings, but here it refers to a district court’s legal authority to impose a sentence on a federal defendant. A common example of federal court not having jurisdiction to enter judgment in a criminal case would be when the indictment fails to charge an offense. While an indictment doesn’t need to be perfect, it must at least state the elements of the charged offense. Without this, a court has no jurisdiction to hear the case. United States v. Harper, 901 F.2d 471 (5th Cir. 1990).

Be aware, though, that the “jurisdiction can be raised anytime” argument only applies to open or pending criminal cases. Jurisdictional claims are still governed by the one-year time limit under  § 2255(f)(1). Williams v. United States, 383 Fed. Appx. 927 (11th Cir. 2010) (collecting cases).

The sentence exceeds the statutory maximum

Another category of claims for federal prisoners is that the sentence for one or more of the offenses exceeds the statutory maximum. While this may seem like an obvious error not likely to happen by an alert judge, it happens more often than expected. When a federal judge imposes a blanket (or “general”) sentence on a federal prisoner to cover all the convictions in a case, sometimes that sentence can exceed the maximum for one of those convictions. You might see this happen with drug and firearms cases, with the statutory maximum for the drugs usually higher than for the firearms.

Subsequent Supreme Court decisions limiting recidivist penalties, like the Armed Career Criminal Act, can also render a sentence over the statutory maximum and open to relief under § 2255. See Johnson v. United States, 135 S. Ct. 2551 (2015).

The “otherwise subject to collateral attack” catch-all category

The last category applying to federal prisoners under § 2255 is the catch-all “otherwise subject to collateral attack” provision. Courts have limited this category to claims that would require relief to prevent a “fundamental miscarriage of justice.” Just like it sounds, this is a high bar to meet.

But it’s not impossible. Courts have held that a prior conviction that was used to enhance a federal sentence that is later vacated could fit under the catch-all category. Cuevas v. United  States, 778 F.3d 267 (1st Cir. 2015). An erroneous mandatory career offender sentence has also been cognizable under the catch-all provision. Narvaez v. United States, 641 F.3d 877 (7th Cir. 2011).

The cumulative effect of multiple errors

In addition to these four categories of claims, there’s also the cumulative-effect-of-errors claim. If an error by itself may not amount to a strong habeas claim, courts have held that the cumulative effect of multiple seemingly harmless errors could be enough to grant habeas relief. Cook v. Foster, 948 F.3d 896 (7th Cir. 2020) (habeas relief granted because of cumulative effect of counsel’s errors). The cumulative-effect claim, however, is not often granted and is commonly included at the end of a motion as a last-ditch effort at relief. Courts also tend to give short attention to such claims, reasoning that since none of these claims separately deserved relief, a combination of them would not require relief. Not all the courts agree on this point, though.

Claim Screening

Both state and federal prisoners must pass through the federal court’s screening of their claims before their habeas case even gets started. See Rules Governing Habeas Corpus Proceedings, Rule 4. This “Rule 4 screening”, as it’s unimaginatively called, isn’t a difficult bar to get over. Really, the court must allow your claims to move forward, unless it “plainly appears” you’re not entitled to relief. Since more than 93% of federal habeas cases are filed pro se, the courts must “liberally construe” the claims and give the pro se petitioner the benefit of the doubt.

This is where the facts come into play. If you give enough facts to support your claims, especially facts of events not in the criminal record, you’ll easily survive Rule 4 screening. You may even get an evidentiary hearing, which is your short-term goal with a habeas proceeding (with being granted relief your long-term goal).

There’s also the issue of which judge hears your habeas case. For state prisoners, this really isn’t an issue because the federal judge hearing the habeas case isn’t the same judge that imposed the sentence and entered the judgment. For federal prisoners, however, this can be a problem. It may seem unfair to allow the same judge who imposed the sentence to decide a § 2255 motion challenging that sentence, but that’s how the committee that wrote the rules wanted it. They said it would be better that way because that’s the judge who knows the case best and he won’t be “misled” by false claims. Carvell v. United States, 173 F.2d 348 (4th Cir. 1949) (explaining the reasoning for this rule).


As you can see, there’s much more to filing federal habeas claims than just amassing the errors in your case. Not all errors lead to good habeas claims — but it only takes one good claim to get relief. Getting a grasp on the procedures for properly raising your claims will go a long way on the road to federal habeas relief.

Got any questions? Let’s talk!

Federal Habeas Corpus: Federal Prosecutors Argue in Supreme Court that Savings Clause Relief Should be Available

August 8, 2022: Jones v. Hendrix, No. 21-857 (S. Ct.)

Even though the government has convinced some federal courts that relief under the savings clause should not even exist for prisoners under 28 U.S.C. § 2255, it has now changed its tune and argued in the Supreme Court that it was wrong and savings clause relief should be made available to prisoners in certain cases.

Interestingly, the government’s position mostly aligns with the more liberal position of the courts in the Fourth and Seventh Circuits, and specifically rejects that of the Tenth and Eleventh Circuits, which have completely cut off any savings clause relief in those courts.

The government’s “argument” in its response brief starts this way and mostly sums up the government’s position in this case:

This case presents the question whether and under what circumstances a federal prisoner who has previously filed a motion under 28 U.S.C. 2255 may file a habeas petition claiming that an intervening decision of statutory interpretation establishes that he was convicted of conduct that is not criminal. Since AEDPA adopted Section 2255(h)’s limits on second or subsequent motions, the government and the lower courts have struggled to reconcile the implications of those limits with Section 2255(e)’s saving clause, which AEDPA left undisturbed.

Initially, the government argued that habeas relief is categorically unavailable for statutory claims. In 1998, after several courts of appeals rejected that “restrictive reading,” Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997), the government reconsidered the matter. From 1998 until 2017, the government argued that the saving clause sometimes allows a prisoner to seek habeas relief based on a new decision of statutory interpretation. Most courts of appeals agreed—though they differed somewhat on the circumstances when such relief is available. See Br. in Opp. at 10-11, Ham v. Breckon, No. 21-763 (Feb. 24, 2022) (collecting cases). The Tenth and Eleventh Circuits, however, adopted the categorical position that habeas relief is never available. See McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076, 1099-1100 (11th Cir.) (en banc), cert. denied, 138 S. Ct. 502 (2017); Prost v. Anderson, 636 F.3d 578, 588 (10th Cir. 2011) (Gorsuch, J.), cert. denied, 565 U.S. 1111 (2012). In 2017, the government reconsidered the matter again and returned to that position.

In light of its varying positions on this important and difficult question, the government reexamined the issue anew after this Court granted certiorari in this case. Based on fresh consideration of the statutory text, con-text, and history, the government has determined that neither of its prior positions reflects the best interpretation of Section 2255. The categorical position the government urged below is difficult to reconcile with Section 2255(e)’s text and rests on an overly expansive negative inference from Section 2255(h). But the government’s pre-2017 position was also insufficiently grounded in the text and in important respects too broad.

The position set forth in this brief follows from a natural reading of Section 2255(e), which allows a prisoner to rely on habeas if the Section 2255 remedy “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. 2255(e) (emphasis added). That present-tense language requires an assessment of the adequacy and efficacy of the Section 2255 remedy at the time the prisoner seeks to file a habeas petition, not in the past. And the text and context make clear that the yardstick for measuring Section 2255’s present adequacy and efficacy is the habeas remedy that Section 2255 was adopted to replace. Section 2255(e) thus generally permits reliance on habeas if Section 2255 does not enable consideration of a claim that would be cognizable in habeas.

In other words, the government was wrong all these years and the savings clause should be available for cases where the Supreme Court has interpreted a criminal statute, making the petitioner innocent of the offense or punishment that was imposed.

So, what kind of case would this apply to? A statutory interpretation decision by the Supreme Court is not a constitutional decision for the purposes of filing a second or successive § 2255 motion under § 2255(h)(2). That has left many prisoners hanging in certain courts because they can’t file another § 2255 motion to attack their conviction or sentence, if they’ve already filed on earlier and got denied, and the savings clause has been shut down for these types of claims by most of the courts.

But the government is now urging the Supreme Court to allow the savings clause for these types of claims in all federal courts, and not just the lucky petitioners who happen to be imprisoned in the Seventh or Fourth Circuits.

The Supreme Court had a chance to fix this deep circuit split many times over the years but has always rejected hearing the issue at the last minute. This time they finally granted certiorari to (hopefully) fix the problem.

Free Power of Attorney Forms for Prisoners

If you need a power of attorney form, you don’t have to pay for them. Here’s a durable power of attorney form for Florida, and a revocation form when the time comes to end the power of attorney. I also included a generic power of attorney form that may be used in other states.

Florida Durable Power of Attorney Form:

Florida Revocation of Power of Attorney Form:

Generic Durable Power of Attorney Form:

I assume no responsibility for these forms. I found them online and figured I woulf make them available to prisoners and their families who often ask me about power of attorney forms (usually in Florida, one of the states that prides itself on incarcerating most of its residents). If you see a problem withe the form, let me know and I will remove it. If this is helpful, I might add an entire section of forms for all the states. Let me know!


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