Federal Habeas Corpus: Court Cannot Use Counsel’s Affidavit to Avoid Evidentiary Hearing Over Disputed Facts

Amaury Villa v. United States, 2023 U.S. App. LEXIS 12 (6th Cir. Jan. 3, 2023), __ F.4th __.

Indicted in Florida and Connecticut, the defendant cooperated with prosecutors. Meanwhile, he was also indicted in Kentucky. The defendant was unaware of those charges when he pled guilty (represented by Attorney Perez) in the other cases. Those courts sentenced him to concurrent terms of 140 and 98 months. The Kentucky prosecutor (Judd) emailed Meier (the defense attorney) a proposed plea agreement, which assumed no further cooperation but stated that if the defendant were willing to cooperate further, Judd would consider recommending a concurrent sentence. Later, the defendant spoke to Meier and Perez in a three-way phone call. Meier allegedly did not mention Judd’s offer. The defendant met with Judd, an FBI agent, and an investigator. Judd told the defendant that the government wanted him to testify against a co-defendant but did not mention the possibility of a cooperation agreement. The defendant then pled guilty without an agreement and was sentenced to 77 months, consecutive to his other sentences.

The defendant moved to set aside his sentence, under 28 U.S.C. § 2255 citing ineffective assistance of counsel. When Meier provided the case file, the defendant allegedly discovered that Judd had mentioned a cooperation agreement and a concurrent sentence. He then moved to amend his § 2255 motion, attaching an affidavit in which he said that Meier never told him about Judd’s offer and that he would have accepted it, plus an affidavit from Perez. The government submitted an affidavit from Meier, asserting that he told the defendant about Judd’s offer.

The district court denied the motion, reasoning that Judd’s wanting the defendant to testify against Rodriguez-Hernandez should have put him on notice of a potential agreement. The Sixth Circuit vacated and remanded for an evidentiary hearing. The district court expected too much of an uncounseled defendant conversing in his second language with a federal prosecutor. Nothing about the defendant’s meeting with Judd resolved the factual dispute presented by the affidavits.

This case is important because too often judges give more weight to a lawyer’s affidavit versus a movant’s in a Section 2255 case — and then deny an evidentiary hearing, even when the facts are clearly disputed. The standard is that a court must grant an evidentiary hearing when the record DOES NOT refute the facts asserted in the motion, not the other way around.

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).

Conclusion

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: How to Raise an Actual Innocence Claim

Believe it or not, someone proving they`re “actually innocent” of their criminal offense is not enough to win federal habeas corpus relief. That`s because actual innocence, by itself, is not a constitutional violation to allow for federal habeas relief. Instead, it`s only the first step toward relief, and there must also be an underlying constitutional claim. Here`s how to raise a successful actual-innocence habeas claim.

What is Actual Innocence?

Typically, actual innocence arises after the discovery of new evidence that would create a “sufficient probability” that there`s reasonable doubt as to a habeas petitioner`s guilt. Schlup v. Delo, 513 U.S. 298 (1995). The Supreme Court has also made clear that actual innocence means “factual innocence,” as opposed to mere legal innocence. Bousley v. United States, 523 U.S. 614 (1998).

The different between factual and legal innocence is sometimes not very clear, but two cases provide some guidance. In Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004), the court granted habeas relief where an offense that was purely intra-state, and thus not a federal offense, was a valid factual innocence claim. And in Beavers v. Saffle, 216 F.3d 918 (10th Cir. 2000), the court held that a self-defense argument claim was more of a “legal innocence” claim than factual innocence. What petitioners need to know is that courts rarely grant habeas relief for legal innocence claims.

What counts as “new evidence” is also not entirely settled. “Admittedly, courts have struggled to define what qualifies as new evidence. Some courts treat all evidence as new so long as it was not presented at trial. Other courts maintain that evidence is new only if it was unavailable at the time of trial.” Lowery v. Parris, 819 Fed. Appx. 420 (6th Cir. 2020) (collecting cases for each type of evidence).

But the new evidence isn`t evaluated in a vacuum. The Supreme Court says that “all the evidence” in a case must be considered, both old and new, when weighing an actual innocence claim. House v. Bell, 547 U.S. 518 (2006). And the habeas court isn`t “barred by the rules of admissibility that would govern at trial,” the Court has said. Schlup. However, once the actual innocence claim opens the habeas door for the underlying constitutional claim, any evidence subsequently considered by the court must be admissible under the rules of evidence. Bousley.

The Standard for Proving Actual Innocence

There are two different standards for showing actual innocence in federal habeas corpus. The standard for a first-in-time motion, or one that`s not considered “second or successive” (SOS), is whether “it is more likely than not that no reasonable juror would have convicted” the petitioner. Bousley. This was called the “probable innocence” standard in Schlup.

The actual innocence standard for SOS petitions, however, is much steeper. For a state petitioner, the law requires:

(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the [habeas] applicant guilty of the underlying offense.

28 U.S.C. sec 2244(b)(2)(B)

For a federal petitioner, the bar is just as high:

Newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilt of the offense[.]

28 U.S.C. sec 2255(h)(1)

The bar for SOS petitioners is high because a showing by “clear and convincing evidence” is more onerous than the more-likely-than-not standard for a first petition. Clear and convincing evidence is like a two-thirds majority in Congress, whereas more-likely-than-not is like a simple majority or just over 50%. And the Supreme Court noted in Schlup that Congress` use of the word “would,” instead of “could,” in determining that “no reasonable factfinder would have found the applicant guilty,” points to the “likely behavior” of the factfinder (juror or judge), where the word “could” points to the “power” of the factfinder to find someone is innocent. This was an important distinction, the Court said.

It`s also not just the offense of conviction that matter for actual innocence, but also any charges that were dropped as part of the plea deal. “In cases where the government has forgone more serious charges in the course of the plea bargaining, petitioner`s showing of actual innocence must also extend to those charges,” the Court said in Bousley. Congress has since codified this requirement in 18 U.S.C. sec 3296.

What Constitutes an Actual Innocence Habeas Claim?

As I eluded to in the beginning, actual innocence is not a valid habeas claim — at least, not by itself. There must be some underlying constitutional violation related to the actual innocence claim that would allow for federal habeas relief. As the Court said in Schlup: “Schlup`s claim of innocence does not by itself provide a basis for relief. Instead, his claim for relief depends critically on the validity of his [underlying constitutional] claims.”

But that was dicta and the Supreme Court has skated around the question of whether a “freestanding” actual-innocence claim could ever form the basis for habeas relief. One case, again in language that was not the holding of the Court, provided a clear suggestion that it would not. In Herrera v. Collins, 506 U.S. 390 (1993), the Court agreed that a petitioner`s actual innocence claim was enough to avoid a procedural bar to habeas relief for his underlying constitutional claim, but rejected any notion that it could be a valid claim itself.

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. [That is because] this rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to correct errors of fact.

The Court further reasoned that a federal habeas court deciding a factual issue, such as an actual innocence claim, and undoing a state-court decision “would be more disruptive to our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” The Court`s reasoning has not gone without much criticism by scholars and advocates of those wrongfully imprisoned, however.

Instead of habeas relief, the Court said that the “traditional remedy” for actual innocence claims has been “executive clemency.”

Actual Innocence is a Gateway Through a Procedural Bar

The way an actual innocence claim works in federal habeas corpus is that it “serves as a gateway through which a petitioner may pass” to have his otherwise-barred constitutional claims heard. McQuiggin v. Perkins, 569 U.S. 383 (2013). The Court cited several habeas procedural bars that it has excused because of actual innocence, including procedural-default for failing to raise a claim earlier, the bar on SOS petitions, the bar on federal evidentiary hearings, and state procedural bars.

The Court established the standard required to avoid a procedural bar with an actual innocence claim: “A petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” The Court also added that an “unjustified delay” is a factor the habeas court must consider with an actual innocence claim, but didn`t define what that meant.

Where to File an Actual innocence Claim

As with most habeas claims, the starting point is almost always in the federal district court. See secs 2255(a), 2254(a). However, an actual innocence claim in a SOS petition must be authorized by the court of appeals, and must meet the harsher “clear and convincing” standard. secs 2244(b)(2)(B), 2255(h)(1). But don`t forget about the Supreme Court. Both state and federal petitioners may file an original petition for habeas relief in the Supreme Court. For example, in In re Davis, 557 U.S. 952 (2009), the Court agreed that the petitioner`s claim of actual innocence was compelling enough that it “transferred” the habeas petition to the district court for a hearing on the actual innocence claim based on newly discovered evidence. While the opinion was just one short paragraph, the Court reaffirmed what it said in Schlup:

Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of the criminal justice system.

IN CONCLUSION, the bar for actual innocence habeas claims is rather high. The key is to understand that an actual innocence claim is the trailblazer for the underlying constitutional claim. Put the proper emphasis on each claim and you`ll succeed with an actual innocence habeas claim in federal court.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.

Federal Habeas Corpus: How to Raise a Fourth Amendment Claim

The slam dunk for federal habeas claims, if there exists such a thing, would be a claim that successfully challenges the evidence in a criminal case. By tossing the illegally-obtained evidence, not only would the conviction be overturned but the prosecution wouldn`t have a case for a new trial. The prisoner walks free.

But reality is that successful Fourth Amendment claims are hard to come by. Even with a solid Fourth Amendment claim, pursuing federal habeas corpus relief is not easy. Here`s a look at some successful cases, but first some background.

The Purpose of The Fourth Amendment

The Fourth Amendment to the U.S. Constitution protects people from “unreasonable searches and seizures” by the government. The key word here is unreasonable, which the courts have stressed is the measuring stick for Fourth Amendment violations. See Davis v. United States, 564 U.S. 229 (2011). Unless a search is unreasonable, the courts usually let it stand.

The remedy for a Fourth Amendment violation is what`s called the “exclusionary rule,” a judge-made rule that allows a court to suppress evidence obtained in violation of the Fourth Amendment. However, the remedy isn`t aimed at righting the wrong against the defendant prosecuted by that evidence. Instead, the rule`s sole purpose is “to deter future Fourth Amendment violations.” Davis. In other words, the exclusionary rule is designed to punish law enforcement so they won`t do it again. Any windfall for the defendant is merely coincidental. This line of reasoning is important when it comes to Fourth Amendment habeas claims.

Bars to Fourth Amendment Challenges in Federal Habeas Corpus

The Supreme has created a formidable barrier to Fourth Amendment habeas claims:

Where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was intended at his trial.

Stone v. Powell, 428 U.S. 465 (1976)

The court reasoned that its rule in Stone was necessary because the exclusionary rule wouldn`t have much force in deterring law enforcement if it`s invoked years later in a habeas case. The Court also said that the costs of undoing a conviction through habeas corpus are “comparatively great,” when compared to a direct appeal. Withrow v. Williams, 507 U.S. 680 (1993).

Withrow also held that the rule in Stone is not a jurisdictional bar to habeas relief, and the prosecution could waive or forfeit the “defense.” And the Court emphasized that Stone applies to only Fourth Amendment claims, and refused to extend the bar to other constitutional claims.

Since over 95% of convictions in this country are by way of a guilty plea, another bar to a Fourth Amendment challenge is the guilty plea itself. The Supreme Court discussed the reason for this bar in Haring v. Prosise, 462 U.S. 306 (1983):

When a defendant is convicted pursuant to his guilty plea rather than a trial, the validity of that conviction cannot be affected by an alleged Fourth Amendment violation because the conviction does not rest in any way on evidence that may have been improperly seized. (emphasis added)

Exceptions to Bars on Fourth Amendment Habeas Challenges

Fortunately, there are some exceptions to the rules barring Fourth Amendment habeas challenges. One way around the bar in Stone for Fourth Amendment claims is to reframe the claim as an ineffective assistance of counsel (IAC) claim, arguing that counsel failed to challenge the evidence. In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Supreme Court held that an IAC claim regarding counsel`s failure to challenge the evidence was really a Sixth Amendment right-to-counsel claim, and not a “direct” Fourth Amendment claim barred by Stone. Thus, the Court provided a work-around for Fourth Amendment habeas claims using the well-worn path for IAC claims.

Another exception to the Stone Fourth Amendment habeas bar is showing that the state court failed to provide a “full and fair opportunity” to challenge the Fourth Amendment claim, or that there was no opportunity to do so. The Seventh Circuit provided some guidance on what a full and fair opportunity to litigate a Fourth Amendment claim would look like:

A petitioner has had the benefit of such an opportunity [for full and fair litigation of a Fourth Amendment claims] so long as (1) he can clearly apprise the state court of his Fourth Amendment claim along with the factual basis for that claim, (2) the state court carefully and thoroughly analyzed the facts, and (3) the court applied the proper constitutional case law to those facts.

Miranda v. Leibach, 394 F.3d 984 (7th Cir. 2005)

However, the court said the test is whether there was an “adequate opportunity to pursue the claim in the state court system,” not whether the challenge was successful or the court`s decision was wrong.

An example of no full and fair opportunity to litigate a Fourth Amendment claim happens when the state court uses the wrong standard of review for the claim. Herrera v. LeMaster, 301 F.3d 1192 (10th Cir. 2002) (en banc). Another would be when the state court has completely ignored the claim. Agee v. White, 809 F.2d 1487 (11th Cir. 1987). There are lots of ways a state court can prevent a full and fair opportunity to litigate a Fourth Amendment claim.

A work-around also exists for raising Fourth Amendment habeas claims after a guilty plea, and it`s like the one in Kimmelman: You must challenge the knowing and voluntary nature of the guilty plea and show that counsel`s advice to plead guilty, despite the Fourth Amendment violation, affected your decision to plead guilty. Tollett v. Henderson, 411 U.S. 258 (1973).

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [Supreme Court cases dealing with IAC claims].

While Kimmelman allowed that counsel`s failure to challenge the Fourth Amendment violation created a ground for habeas relief, Tollett also requires a showing that counsel`s advice to plead guilty was wrong because of the Fourth Amendment violation. Both claims come back to a Fourth Amendment violation, and both point the finger at counsel — but not directly at the Fourth Amendment violation.

Successfully Challenging Fourth Amendment Violations for State Petitioners

Here`s an example of a successful Fourth Amendment habeas claim by a state petitioner. In Bostick v. Peters, 3 F.3d 1023 (7th Cir. 1993), the petitioner filed for federal habeas relief, under 28 U.S.C. sec 2254, claiming that the drug evidence was obtained in violation of the Fourth Amendment. While the district court ruled that the claim was barred by Stone, the court of appeals found that the state court had prevented a full and fair opportunity to litigate the claim in state court and reversed the district court.

The court established a two-step process for determining whether the state court provides a full and fair opportunity to a petitioner: “[1] whether the state procedural mechanism, in the abstract, presents the opportunity to raise a Fourth Amendment claim, and [2] whether the claim in question was in fact frustrated by a failure of that mechanism.”

The state court had a rule that had prevented the petition from developing his Fourth Amendment claim, and this “unanticipated and unforeseeable application of a rule on appeal prevented the state courts from properly considering the merits of the petitioner`s claim,” the court concluded. “Indeed, if Fourth Amendment claims fall on deaf ears in the state courts and defendants are then precluded from raising their claims on collateral review, the efficacy of the exclusionary rule in deterring future Fourth Amendment violations would be undermined.”

Successfully Challenging Fourth Amendment Violations for Federal Petitioners

For federal petitioners, Fourth Amendment habeas claims are even more difficult, since any claim not raised on direct appeal cannot be raised in a motion under 28 U.S.C. sec 2255, unless “cause and prejudice” are shown. Massaro v. United States, 538 U.S. 500 (2003). But Massaro also held that an IAC claim can provide cause and prejudice to avoid this procedural default.

In United States v. Cavitt, 550 F.3d 430 (5th Cir. 2008), a federal petitioner filing for relief under 28 U.S.C. sec 2255 claimed that his guilty plea wasn`t valid due to counsel`s failure to challenge the drug evidence obtained during an illegal search. While the district court denied relief, stating that Stone barred his Fourth Amendment argument, the court of appeals vacated that decision and found that the IAC claim bypassed the Stone bar. On remand, the district court found that counsel was indeed ineffective and allowed the petitioner to withdraw his guilty plea. See Cavitt v. United States, 2009 U.S. Dist. LEXIS 144833 (E.D. Tex. May 29, 2009).

IN CONCLUSION, Fourth Amendment claims in federal habeas corpus are no doubt complex. There`s lots of obstacles but there`s also ways around those obstacles. Plan your route accordingly and you`ll win federal habeas relief on your Fourth Amendment claim.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.

SCOTUS Holds Attempted Hobbs Act Robbery Not a Categorical Match for 924(c)

The Supreme Court of the United States (SCOTUS) held on June 21, 2022, that an attempted Hobbs Act robbery was not categorically a crime of violence to support a separate conviction for use of a firearm under federal law, despite the fact that someone was shot and killed during the offense. It was yet another in the Court`s line of decisions that have narrowed which offenses qualify under the harsh federal gun laws relating to current and past crimes of violence.

This case happened almost 20 years ago, when Taylor and a codefendant attempted to rob a drug dealer. The dealer fought back and the codefendant shot and killed the dealer. Taylor agreed to plead guilty to attempted Hobbs Act robbery and discharge of a firearm during a crime of violence. At the time, use of a firearm during a crime of violence under 18 U.S.C. sec 924(c) broadly included an offense that “involves a substantial risk that physical force against the person or property of another may be used.” sec 924(c)(3)(B). Even if Taylor`s attempted robbery didn`t involve force, the risk of force was enough to negate any challenge to the sec 924(c) charge. He was sentenced to 30 years in prison, 20 for the robbery (the statutory maximum) and 10 for the firearm. His appeal was barred by a waiver in his plea agreement.

When SCOTUS struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutional in Johnson v. United States, 576 U.S. 591 (2015), the Fourth Circuit granted Taylor permission to file a second of successive (SOS) motion under 28 U.S.C. sec 2255 to challenge his sec 924(c) conviction. The Supreme Court then extended Johnson to the residual clause in sec 924(c), in United States v. Davis, 139 S. Ct. 2319 (2019), but the district court denied Taylor`s motion. The court held that an attempted Hobbs Act robbery still qualified under the elements or “force” clause of sec 924(c). The Fourth Circuit, however, disagreed and vacated Taylor`s sec 924(c) conviction, and SCOTUS agreed to hear the government`s appeal.

A Mismatch of the Elements

In order for a predicate offense, such as Taylor`s attempted Hobbs Act robbery, to qualify as a crime of violence to support a sec 924(c) conviction, the offense must have “as an element, the use, attempted use, or threatened use of physical force against the person or property of another.” sec 924(c)(3)(A).

A completed Hobbs Act robbery requires the government to prove beyond a reasonable doubt that a defendant engaged in the “unlawful taking or obtaining of personal property from the person … of another, against his will, by means of actual or threatened force.” 18 U.S.C. sec 1951(b). However, attempted Hobbs Act robbery only requires two things: (1) that the defendant intended to take property by force, and (2) that he took a “substantial step” toward that. The parties agreed, and the Court accepted in Taylor`s case, that a substantial step means an “unequivocal step” but it “need not be violent.”

SCOTUS said that while the government must show an intention to use force to take property to prove an attempted Hobbs Act robbery, “an intention is just that, no more.” It also found that a substantial step did not require the actual use of force, and that the Model Penal Code`s definition of robbery aligned with this finding.

The government pressed two arguments in an effort to fit attempted Hobbs Act robbery under the elements clause. First, it offered an argument that it had successfully used to convince several other circuits to include attempted Hobbs Act robbery within the elements clause of sec 924(c). It said that since completed Hobbs Act robbery, then an attempt also qualifies. The district court said as much when it denied Taylor`s motion. SCOTUS rejected this because the elements clause “asks whether the defendant did commit a crime of violence,” not whether there was an attempt to do so. Congress could have included attempted crimes of violence in the elements clause if it wanted to, the Court explained.

The government`s second argument got more attention but still failed. It argued that taking a substantial step toward completing Hobbs Act robbery amounted to a “threatened use of force.” The Court cited five sources defining “threat” and found it requires some form of communication. The government`s definition, the Court said, “would vastly expand the statute`s reach” by including threats without communication, such as an incomplete offense like attempted Hobbs Act robbery. The Court warned that expanding the elements clause this far “would only wind up effectively replicating the work formerly performed by the residual clause … and perhaps inviting similar constitutional questions along the way.”

The Elements Matter, Not the Conduct

Whether Taylor`s attempted Hobbs Act robbery could support a sec 924(c) conviction had nothing to do with his conduct in the offense. The Supreme Court applied the “categorical approach” in Davis to analyze predicate offenses under sec 924(c), and reaffirmed here that this approach still applied. A court may not look at the defendant`s conduct under the categorical approach, only the elements of the offense in question, the Court held in that case.

To separate Taylor`s offense conduct from the analysis, the Court presented a hypothetical case of an unfortunate bank robber who wrote a threatening note and laid out his plans, only to be arrested before he could complete the robbery. He would be guilty of attempted robbery, even though he never attempted to communicate a threat, since the note was never delivered. “He never even got to the point of threatening the use of force against anyone or anything,” the Court said. But under the categorical approach, “no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force,” the Court concluded.

A Defendant Need Not Prove How the Government Prosecutes Similar Crimes

The government faulted Taylor for not providing any cases in which the government had prosecuted someone for an attempted Hobbs Act robbery without a communicated threat, but SCOTUS said it didn`t matter.

The government`s theory cannot be squared with the statute`s terms. To determine whether a federal felony qualifies as a crime of violence, sec 924(c)(3)(A) doesn`t ask whether the crime is sometimes or even usually associated with communicated threats of force (or, for that matter, with he actual or attempted use of force). It asks whether the government must prove, as an element of its case, the use, attempted use, or threatened use of force.

The Court pointed out that this is a “world where most cases end in plea agreements,” and the particulars of what the government proved in a case would not be “easily accessible” to defendants. The government`s proposed rule that defendants must prove how the government prosecutes similar offenses is too much a of “burden,” the Court said.

Accordingly, SCOTUS upheld the Fourth Circuit`s decision vacating Taylor`s sec 924(c) conviction based on an attempted Hobbs Act robbery conviction. See: United States v. Taylor, No. 20-1459 (S. Ct. June 21, 2022).

The Big Question seems to be whether Taylor will open the door for relief under § 2255 for § 924(c) convictions based on attempted Hobbs Act robbery. Yes, Taylor was granted relief under § 2255, but his motion was based on Johnson and Davis.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a federal litigation consultant with the Zoukis Consulting Group. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.

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