Newsletter July 2nd, 2021

NEWSLETTER July 2, 2021

Welcome to the weekly edition of our newsletter.


[-] Borden and 924(c)

Whenever the Supreme Court invalidates part of a criminal statute, the question comes up about whether the Court’s reasoning could affect similar statutes and whether this opens the door for relief. The Court held in Borden that a prior conviction involving reckless conduct cannot serve as a predicate for the ACCA. But what about 924(c) cases? After all, the elements clause of 924(c) has the same language as the ACCA’s elements clause (with an addition of force to property).

Courts have long said that the Supreme Court’s reasoning in Voisine v. United States, 579 U.S. 686 (2016), which held that “use of force” under a different firearm statute included reckless conduct, equally applied to the ACCA and 924(c). For example, United States v. Mann, 899 F.3d 898 (10th Cir. 2018), held that because it had previously applied Voisine to the ACCA, it also applied to 924(c). “Reckless conduct is no less the volitional use of physical force against the person or property of another for purposes of 18 U.S.C. 924(c)(3)(A),” the court concluded.

But Borden upset that line of thinking and held that Voisine doesn’t apply to the ACCA. So, what about 924(c)? It’s too early to tell what impact Borden will have on those cases. However, there appears to be a viable avenue of relief for prisoners serving 924(c) sentences attached to crimes with mere reckless conduct.

[-] 25 Years of the AEDPA: Where do We Stand?

(The following is adapted from an article by Dale Chappell in the July 2021 issue of Prison Legal News, printed with permission from PLN.)

April 24, 2021, marked 25 years since the passage of the Antiterrorism and Effective Death Penalty Act. So, where do we stand? Scholars to weigh in on the AEDPA have largely agreed that the law wasn’t necessary. At least, not to curb prisoners challenging their convictions and sentences under federal habeas corpus. This is because the Supreme Court already had a handle on the perceived problem of prisoners filing endless appeals, by establishing its own rules through decisions curbing the abuse of habeas corpus.

While a Supreme Court decision is binding on all federal courts, it is not set in stone. In each of its decisions limiting habeas corpus, the Court left open some discretion of the lower courts to bypass the rules when relief was required. But the problem with Congress codifying these decisions under the AEDPA, making them statutory requirements that court must follow, is that it removed all discretion from the court in granting habeas relief when needed. Why Congress included all prisoners in the AEDPA’s restrictions remains a mystery. Of the sparse legislative history available on the AEDPA, most of the discussions centered around speeding up the death penalty. Oddly, the one-year statute of limitations applying to everyone was a last-minute addition that had no basis in prior Supreme Court decisions, and most scholars agree it wasn’t needed.

Instead, the courts had applied the doctrine of laches, meaning that a court could dismiss a habeas petition filed its lateness would prejudice the government. In an unexpected result, the AEDPA’s statute of limitations has actually increased the number of motions by prisoners, out of fear they would be forever barred from filing for relief if they didn’t do so within one year. This has forced courts to address kitchen-sink motions, wasting even more of the court’s time.

The AEDPA also created formidable barriers for prisoners seeking relief, nearly all of whom do so without a lawyer. Habeas corpus often comes down to getting around numerous procedural bars and rarely ever do the courts address prisoners’ claims. The procedural obstacles are an easy way for prosecutors to make quick work of a motion, no matter the importance of the constitutional problem raised. After the AEDPA, courts don’t have the discretion to ignore those procedural bars like they had when those obstacles were only judge-made. This means constitutional errors are overlooked. And thanks to those procedural bars, the success rate for prisoners filing for relief is not even one half of one percent in federal court.

[-] Home Confinement Fiasco: An Update

With almost 5,000 federal prisoners released to home confinement under the CARES Act to cut their risk of death from COVID-19, a Trump-era DOJ memorandum that would force their return to prison hangs over their heads. Inexplicably, the Biden Administration has refused to address the problem, saying they will cross that bridge when they get to it. Members of Congress have written a joint letter to AG Garland, and prisoner advocates have been vocal about Biden’s indifference toward these prisoners in limbo.

News outlet recently posted some quotes by these advocates. One was Holly Harris, president and executive director of the Justice Action Network, who made some strikingly valid points about Biden’s inaction. “The timidity with which the Biden Administration has handled the home confinement issue is everything people dislike about politics. They don’t want someone to stick his thumb in the air to see which was the wind is blowing. They want strong leadership,” she said. “At this point, the president just needs to grant the clemency and let them move on. They are out because the Trump Administration felt it was safe enough to let them go home. What more cover does [Biden] need?” Good point.

CASE OF THE WEEK: United States v. Collington, 995 F.3d 347 (4th Cir. 2021)

While sentencing judges have discretion in granting relief under the First Step Act, the Fourth Circuit recently held that the purposes of the First Step Act in making the Fair Sentencing Act of 2010 (FSA) retroactive constrain that discretion and require the judge to grant relief when someone qualifies. In this case, the district court imposed a 30-year sentence for a crack offense. Four months later, Congress enacted the FSA, reducing the statutory maximum to 20 years. However, the FSA didn’t apply retroactively to Mr. Collington’s case and the 30-year sentence had to stand.

In 2018, Congress enacted the First Step Act, making the FSA retroactive to cases like Mr. Collington’s. The district court agreed that he qualified for relief but refused to grant it, citing the stipulated 30-year sentence in the plea agreement and that “nothing required the court to reduce [his] sentence.” The Fourth Circuit disagreed.

Highlighting Congress’ purpose for making the FSA retroactive under the First Step Act, the Court held that a district court may not ignore a sentence that is now-illegal for someone who qualifies under the First Step Act. “We instead hold that the district court’s overall sentencing authority is constrained by the retroactively applicable statutory maximums in [21 U.S.C. 841], such that the district court abused its discretion in letting stand a sentence that was made illegal under the First Step Act.”

The Court also took a moment to describe just how important the First Step Act was in making the FSA retroactive and reducing unfair crack sentences: “The First Step Act, although modest in scope, represents an attempt by Congress to remedy an unjust sentencing structure for crack cocaine offenses. To do so, it made the [FSA’s] reduced statutory maximum sentences retroactively applicable to those sentenced under an outdated, harsher sentencing scheme. That change reflects Congress’s more compassionate approach to drug sentence and its rejection of sentences above that range …. This is not a case in which a district court retained a sentence that would be permissible under the [FSA], but instead a case in which the district court left in place a sentence that exceeds the maximum permissible sentence by a decade. To affirm such a decision, this Court would have to turn its back not only on this Court’s understanding of the First Step Act but also our background sentencing principles.”

The Court vacated the denial of relief and remanded with instructions for the district court to impose a sentence that “comports” with the First Step Act.


As always, we welcome your questions and comments for the newsletter.

Q: Did Borden make any changes to Hobbs Act robbery being a violent felony or crime of violence?

A: As discussed above, Borden may have an impact on predicates qualifying as violent felonies under 924(c)’s elements clause. Hobbs Act robbery is commonly tied to 924(c) sentences under this provision. But whether Borden directly affects Hobbs Act robbery is an interesting question, since it doesn’t expressly require purposeful or knowing mens rea as an element but courts have assumed that it does. Would Borden’s reasoning, making mens rea a required element for recidivist sentencing purposes, disqualify Hobbs Act robbery as a violent felony? It could be a worthy challenge by someone.

Q: Do the changes under the First Step Act only apply to crack cases or can other drugs qualify?

A: The First Step Act made the FSA retroactive by reducing the statutory sentences for crack offenses. This means crack had to play some part of the offense to qualify. Courts have held that other drugs in addition to crack are fine, as long as crack was part of the offense. See United States v. Taylor, 952 F.3d 1295 (11th Cir. 2020); United States v. Gravatt, 953 F.3d 258 (4th Cir. 2020).

Q: Is there a form that I need to use in order to file a 2255 motion?

A: There is a form for filing a motion under 28 U.S.C. 2255, and most courts require you to use this form. While you can file a motion without using the form and it will be accepted, the court might still require you to file the form. Under the 2255 Rules, the clerk is required to provide you with the form for free, and there is no filing fee for the 2255 motion.

That’s about it for this week. Thanks again for being a part of our newsletter!

Brandon Sample, Esq.
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