Supreme Court ACCA Cases Should Help Resolve Dimaya Circuit
Split: More News
by Derek Gilna
The U.S.
Supreme Court (SC) will consider the case of Haight v. US, out of the DC
circuit, which asks whether a criminal offense with a reckless "mens rea"
qualifies as a "violent felony" under the ACCA. "Mens rea"
refers to what is commonly referred to as a "guilty mind," thought as
a necessity for one to be found guilty of a crime, but watered-down by the US
This case
arrives at the perfect time, since the 11th Circuit narrowed Dimaya relief in
the recent Ovalles case, and the Sessions Justice Department has made similar
arguments in the 2nd and 4th Circuits. Haight is an opportunity for the SC to
force the circuits to get in line with its obvious distaste for expansive ACCA
sentencing.
Interestingly,
the arrival of two "originalist" conservatives to the SC, Gorsuch and
Kavanaugh, (referring to those who feel
that the US Constitution does not bend with the times but must be given its
original meaning) actually works in defendants' favor in these ACCA cases, and
it hoped that that will be the case here. In fact, it is the more conservative
groups, such as the Justice Action Network, who are busy rounding up votes for
First Step. That group is no fan of soon-to-be gone Sessions, and his embattled
deputy, Rod Rosenstein. Remember, nothing will be voted on until AFTER the
November election.
The First
Circuit, in rejecting an application for leave to filed a second 2255 under
Johnson and Dimaya, highlighted the importance of the facts of the individual
case in getting relief under those cases, narrowing its holding to distinguish
the case of Elaine Brown from most other situations because of the extreme
circumstances (accumulation of large quantities of explosives combined with a credible
threat to detonate them), as well as noting that Johnson was never intended to apply to
"pending" charges, rather than older ones. The court said that there
was no question that Brown was engaged in a crime of extreme violence. Johnson
and Dimaya refer to PRIOR convictions, not current ones the court said. If anything, this court solidified Johnson
and Dimaya's application. Brown v US 10-12-18 ).
Finally,
the Ninth Circuit has held in a reverse sting case that "a defendant need
not proffer evidence that
similarly-situated individuals of a different race were not investigated or
arrested to receive discovery on a selective enforcement claim like the
defendant's." The court permitted discovery on this limited issue, and
remanded the case to the district court for the discovery to take place.
We look
forward to discussing with you any potential relief that might be obtained
under Johnson and Dimaya, or to assert inadequate representation of counsel in
a 2255 petition for those whose direct appeal was recently denied. Also, not a
bad idea to pass along your outside contact's email address, so that they might
receive the same news that you do.
Federal Legal Center, Inc.
Derek A. Gilna, JD, Director
