In Randolph v. United States, No. 17-10620 (Sept. 25, 2018) (Ed Carnes, Branch, Gayles), the Court affirmed the dismissal of a successive 2255 motion based on Johnson.
The Court ruled that dismissal was required under 2244(b)(1) because the movant raised a Johnson claim in his initial 2255 motion. That also meant that the rule announced in Johnson was not "previously unavailable" to him, a requirement for successive motions. That was so even though his first 2255 motion was filed before the Supreme Court declared Johnson retroactive in Welch. The Court also ruled that, in the successive proceeding, the movant could not use Welch to challenge the correctness of the dismissal of his initial 2255 motion on procedural-default grounds. Lastly, the Court rejected the movant's argument that it owed deference to its order authorizing the successive 2255 motion.
Tuesday, September 25, 2018
Friday, September 21, 2018
Phifer: Vacating Ethylone Conviction Because DEA Regulations Ambiguous
In United States v. Phifer, No. 17-10397 (Sept. 21, 2018) (Rosenbaum, Jordan, Dubina), the Court vacated the defendant's conviction for possession with intent to distribute ethylone.
The issue on appeal was whether ethylone was a "positional isomer" of butylone. After a "crash course in organic chemistry," the Court concluded that the DEA's regulatory of definition of "positional isomer" did not unambiguously apply. And, because this was a criminal case, the Court refused to defer to the DEA's interpretation of its own regulation. The Court instructed the district court to conduct an evidentiary hearing on remand to determine the scientific meaning of "positional isomer," as used in the regulation. The Court rejected the defendant's argument that re-trying him would violate double jeopardy.
Judge Jordan concurred, expressing concerns that the statute might be vague as applied to the defendant.
The issue on appeal was whether ethylone was a "positional isomer" of butylone. After a "crash course in organic chemistry," the Court concluded that the DEA's regulatory of definition of "positional isomer" did not unambiguously apply. And, because this was a criminal case, the Court refused to defer to the DEA's interpretation of its own regulation. The Court instructed the district court to conduct an evidentiary hearing on remand to determine the scientific meaning of "positional isomer," as used in the regulation. The Court rejected the defendant's argument that re-trying him would violate double jeopardy.
Judge Jordan concurred, expressing concerns that the statute might be vague as applied to the defendant.
Wednesday, September 19, 2018
Oliva: No Speedy Trial Violation Where 23-Month Delay Between Indictment and Arrest Was Due to Government Negligence
In United States v. Oliva, No. 17-12091 (Sept. 18, 2018) (Wilson, Newsom, Vinson) (per curiam), the Court held that a 23-month delay between indictment and arrest, due to the government's negligence, did not violate the defendants' right to a speedy trial under the Sixth Amendment.
Applying Barker v. Wingo, the Court concluded defendant was required to prove actual prejudice because the first two Barker factors--the length of delay and the reason for delay--did not "weigh heavily" against the government. The Court found no clear error in the district court's finding that the government's negligence was neither purposeful nor undertaken in bad faith, and the Court rejected the defendants' argument that the case law did not require such conduct. The Court also found that, unlike the 2.5 year delay in a prior case involving a simple investigation, the 23-month delay for the more complex investigation here was not "inordinate." The Court also found that the negligence, while worrisome, was not as egregious as in past cases because the government agent believed that another agency was responsible for the arrest, he was serving as a solo investigator for the first time and was unfamiliar with procedure, he quickly effectuated the arrest once he realized his mistake, and the prosecutor who secured the indictment left the office and was not replaced for more than a year. Thus, when comparing the length of the delay and the reason for it with past cases, the Court concluded that those two factors did not weight heavily against the government, and the defendants were therefore required to prove actual prejudice (which they admittedly could not).
Applying Barker v. Wingo, the Court concluded defendant was required to prove actual prejudice because the first two Barker factors--the length of delay and the reason for delay--did not "weigh heavily" against the government. The Court found no clear error in the district court's finding that the government's negligence was neither purposeful nor undertaken in bad faith, and the Court rejected the defendants' argument that the case law did not require such conduct. The Court also found that, unlike the 2.5 year delay in a prior case involving a simple investigation, the 23-month delay for the more complex investigation here was not "inordinate." The Court also found that the negligence, while worrisome, was not as egregious as in past cases because the government agent believed that another agency was responsible for the arrest, he was serving as a solo investigator for the first time and was unfamiliar with procedure, he quickly effectuated the arrest once he realized his mistake, and the prosecutor who secured the indictment left the office and was not replaced for more than a year. Thus, when comparing the length of the delay and the reason for it with past cases, the Court concluded that those two factors did not weight heavily against the government, and the defendants were therefore required to prove actual prejudice (which they admittedly could not).
Tuesday, September 04, 2018
Williams: Remanding for Evidentiary Hearing on Trial Counsel's Conflict of Interest
In United States v. Williams, No. 15-12130 (Sept. 4, 2018) (Jordan, Tjoflat, Huck), the Court remanded the case to the district court to make factual determinations about whether trial counsel's conflict of interest had an adverse effect on the defendant.
The Court determined that trial counsel was laboring under a conflict of interest because, in addition to representing the defendant, he also represented a witness who testified at trial for the government. He represented that witness in the pending appeal of his criminal case, and trial counsel elected not to cross examine that witness at trial. The Court also opined that the defendant made out a strong case that this conflict of interest had an adverse effect on him because cross examination was a viable option, and he may not have done so due to his loyalty to the witness. The Court, however, remanded for an evidentiary hearing to flesh our more details about the conflict of interest and its impact on trial counsel.
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