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."