First Step Act Can Maximize Community Corrections Time.

Does the First Step Act Permit Maximization of Community Corrections?; Case Updates

by Derek Gilna

            Many questions have arisen about whether the First Step Act (FSA) provides for maximization of community corrections, including halfway house.   This concept was around long before the passage of FSA in 2018.  It has long been a staple of good representation that defense counsel should advocate  for the maximum period of community corrections,  a requirement under Section 3621(b).

            It is well known that the federal prison system has violated Congress' directive to

maximize halfway house time, and has relied upon informal internal directives to cap placements at six months, and has consistently misled prisoners and the general public regarding this fact. Its use of those informal directives is in direct violation of the Administrative Procedure Act, which requires notice-and-comment procedures to be followed.   It is our opinion that FSA now gives the sentencing courts jurisdiction to attack these provisions (and others) with a well-drafted pleading.

            The US Supreme Court will hear arguments in Banister v. Davis, 18-6943,  whether and under what circumstances a timely Rule 59(e) motion should be re-characterized as a second or successive habeas petition under Gonzalez v. Crosby. Rule 59(e) motions have been used to sidestep statute of limitations issues in post-conviction motions.

            We revisit an important case in the 9th Circuit, Washington v. Ryan, (9th Cir. 4-17-19), a 2255 habeas case reversed and remanded for defense counsel's failing to investigate and present mitigating evidence at the penalty phase: " In the penalty phase, the focus shifts from guilt to culpability, and evidence on both aggravating and mitigating factors is properly considered." In Washington, counsel failed to offer clearly available evidence of mental illness, prejudicing his client.

            We also revisit the case of US v Hassan Ali, 15-4433, a 4th Cir. Hobbs Act robbery appeal, that has been again held in abeyance. The case has now been pending four years, an unusual circumstance.

            In US v Perez, 17-14136, (11th Cir. 11-26-19) the court vacated a conviction where the facts did not justify a 18 USC 2113(a) prosecution based upon a reasonable fear of death enhancement, where the facts showed that without possessing or threatening the use of weapons, he entered two banks, and using words like "please" and "thank you" "bargained pleasantly with one teller for $5000 and allowed another teller to leave he teller's post and report the robbery while it was ongoing."