McKay: Actual Innocence does not encompass legal claims

In McKay v. U.S., No. 09-15099 (Sept. 22, 2011), the Court held that a career offender could not seek a sentence reduction in a proceeding under 28 U.S.C. § 2255 based on intervening Supreme Court caselaw that made one of his prior convictions no longer qualify as a “crime of violence.” The Court noted that the defendant had failed to challenge the prior conviction in his direct appeal of his sentence. He therefore waived the issue for a future § 2255 motion. The Court rejected the argument that the “actual innocence” exception might excuse the default. The Court held that the “actual innocence” exception applies only to “factual” innocence, not to legal claims. Here, the defendant did not argue that he was innocent of the prior carrying a concealed weapon offense, only that this offense no longer qualified as a “crime of violence.” The Court held that this did not suffice to establish “actual innocence.”

Jayyousi: Terror convictions affirmed; sentence reversed

In U.S. v. Jayyousi, No. 08-10494 (Sept. 19, 2011), the Court affirmed (2-1) the convictions of three defendants for offenses relating to their support for Islamist violence overseas, but vacated the sentence of defendant Padilla.

The Court rejected the argument that the district court erred in admitting under FRE 701 the testimony of an FBI agent about the meaning of code words in conversations among the co-defendants. The Court found that the testimony was based on five years of investigation, and review of thousands of wiretap summaries – it was rationally based on his perception. The Court noted it had “never held that a lay witness must be a participant or observer of a conversation to provide testimony about the meaning of coded language used in the conversation.”

The Court rejected challenges to the sufficiency of the evidence, noting, inter alia, that defendant Padilla was “secretive” about his plans to attend an al-Qaeda training camp, that the conspirators planned for him to travel to fight in “jihad,” and that Jayyousi oversaw the purchase of satellite phones to send to Chechnya to aid in armed conflict.

The Court rejected Padilla’s challenge to the admission of statements he made without Miranda warnings during his interview with FBI agent at Chicago O’Hare airport. The Court noted that questioning at the border must rise to a “distinctly accusatory level” before a person is deemed in “custody.” The Court found that the questioning was not accusatory until one agent accused Padilla of links to a terrorist organization. It rejected the dissent’s contention that the questioning became accusatorial when an agent confronted Padilla about not the telling the truth and about the source and purpose of the money he had failed to declare.

The Court rejected Padilla’s argument that the indictment should have been dismissed because of the outrageous government conduct when he was held in custody as an enemy combatant at a Navy Brig in South Carolina. The Court held that the outrageous government conduct doctrine only applies when the government conduct relates to the defendant’s underlying or charged criminal acts. Padilla’s claim related to mistreatment at the brig after the conclusion of his criminal acts.

The Court rejected co-defendant Hassoun’s argument that the district court should not have excluded a statement that someone other than Hassoun recruited Padilla for jihad. The Court found that the statement lacked the exceptional trustworthiness required under FRE 807 to admit otherwise inadmissible hearsay.

Turning to sentencing, the Court affirmed the district court’s imposition of a Guidelines terrorism sentence enhancement. The Court found that the defendants’ intended outcome was to displace “infidel” government that opposed radical Islamist goals. As to Padilla, however, the Court reversed the district court’s 208 months’ sentence. The Court faulted the district court for failing to adequately reflect Padilla’s criminal history. The district court also failed to account for Padilla’s “heightened risk of future dangerousness due to his al-Qaeda training.” The district court also failed to consider significant distinctions between Padilla and the other offenders the district court referenced. because these offenders pleaded guilty, were convicted of less serious offenses, or lacked extensive criminal histories. Finally, although the district court’s reliance on Padilla’s harsh conditions of pretrial confinement was a valid basis for a sentence reduction, it did not justify a reduction as “extensive” as the one the district court gave Padilla. The Court therefore remanded the case for resentencing.

Valle: 2254 cannot be used to challenge clemency procedures

In Valle v. Sec. Fla. Dep’t of Corrections, No. 11-13962 (Sept. 8, 2011) the Court held that a habeas petition under 28 U.S.C. § 2254 could not be used by an inmate to challenge clemency proceedings. Complaints about clemency procedures may only be brought under 42 U.S.C. § 1983. The Court also denied a stay of execution, finding that Valle had not shown a substantial likelihood of success on his clemency claims.