Federal Prisoner Relief Is Coming No Matter Who is Elected President

 

No Question that 2020 and 2021 Will See More Prisoner Relief; Appellate Update

 

by Derek Gilna

 

            No matter the result of  the election (which may not be settled until the U.S. Supreme Court rules on vote challenges after Justice Barrett is seated), the balance of 2020 and 2021 will see more prisoner relief, at least on the scale of First Step. Only the timing is in question.

            Regular readers of this newsletter know that I teased a development for this month, which is almost over.    The reason for this was the up tick in activity in both White House and DOJ clemency offices, and some of the feedback from readers, who have also noticed the change. In the last debate, the President touted First Step  releases, and high profile clemencies, whereas Biden retorted that Obama's (condition-filled) clemencies were more numerous.   The President (with all major police endorsements in his pocket polling at record levels in the Black community) smiled a knowing smile, but uncharacteristically said nothing.  Win or lose, he will not miss a chance to again outdo, upstage, (or shame) Obama by a substantial grant of Presidential clemencies and pardons before January 20, 2021, blowing apart Democratic dominance of Black support.

            "Crime Bill" Biden, whose most ardent supporters are now left wing police  and prison abolitionists, is already on record  favoring the retroactive abolition of mandatory minimums, , as well as a "Second Step," which would result in well over 10,000 federal prison releases. What you would not see with a President Biden is DOJ or FBI reform. If reelected, Trump will fire the current FBI Director, and complete his DOJ restructuring, reining in glory-seeking federal prosecutors who have caused untold human misery.

            Part of that restructuring would include the federal prison system, which continues to apparently purposely spread COVID-19 infections, which spiked in  the past week. Virtually every prison has a serious outbreak, and at least one quarantined unit. Transfer institutions like Thomson, McDowell,  and Ft. Dix have been especially hard hit and at Alderson all transferees tested positive upon arrival.  Other institutions like Forrest City, Pekin, and Waseca, have seen guard shortages when many called in sick due to hazardous working conditions. Carswell and Butner have new cases, some of which are reinfection. Still other wardens are defying AG Barr's CARES release guidelines ,and complaints from Congressmen,  despite the fact that the DOJ IG has cited the federal prison system in both Lompoc and other locations for inadequate medical care.

            In the circuits, in US v. Firebaugh, 16-20341, USDC-SD-FL, (June 1, 2020), the Government conceded that on May 18, 2020" DOJ issued internal guidance which directs that the Government concede that Defendants who have certain CDC risk factors, (lists them), can establish 'extraordinary and compelling reasons,'  a remarkable development, leaving only the "danger to the community if released" roadblock.

            In US v Wilson, 19-3394, (6th Cir. 10-23-20), the court vacated a 922g1 sentence, where an Ohio robbery was found to not be an ACCA predicate. In the white collar case of US v. Hazelwood, 18-6023 (6th Cir. 10-14, 20) the court reversed  all conviction when the prosecution violated FR 403 by introducing inflammatory statements unrelated to the case. In  US v. Alhaggai, 19-10092, (9th Cir. 10-22-20) the court vacated a terrorism sentence, where the district court erroneously permitted a terror enhancement when the government prosecuted based upon inflammatory statements on social media without making a finding that there was intent to commit an act of terrorism.

            I would be pleased to review your case for possible FSA relief, Compassionate Release, or a 2555 habeas for inadequate representation of counsel, at no charge.

Let not your heart be troubled.

Federal Legal Center, Inc.  Derek A Gilna, JD, MRJ, Director

113 McHenry Rd. #173, Buffalo Grove, IL   600689 (and Indiana)

dgilna1948@yahoo.com; blogging at "Derek Gilna's Criminal Justice Blog."

           

           

 

 

Bureau of Prisons, Sensitive to Rising Criticism, "Mistakenly" Deletes, then Reinstates Corrlinks for Two Advocate Organizations

 

"The Empire Strikes Back;" Advocate and Attorney Emails Abruptly Halted, But Reinstated

 

by Derek Gilna

 

            In what was termed by DOJ a "mistake," two prominent prisoner-information websites were abruptly kicked off Corrlinks without prior notice, but later restored.  Those individuals wishing to reestablish contact will apparently have to resend invitations to those organizations, as DOJ claims that it cannot (or will not) do so. (Note our alternate email address at the bottom of the newsletter and save it. for reference.)

            Prisoners and their families continue to have difficulty navigating the IRS website to file a 2019 online 1040 tax return to establish their eligibility of the Sprint 2020 stimulus payment.  I recommend filing a paper return, showing $1 in income for 2019, and listing an address of family or trusted friend. It may take longer, but should work.

            Despite the fact that COVID-19 cases are dropping across the country( with mostly younger people with low mortality rates getting infected), levels in federal jails and holding facilities continue to hold steady, and in some prisons, increase rapidly.   The reason is clear; DOJ and the U.S. Marshals continue to transport COVID-positive prisoners, who in turn fuel new outbreaks at their destinations. One of its favorite holding facilities, Grady County, Oklahoma, has spread the virus system-wide. Intercept.com.

             The evidence would tend to show that DOJ is attempting to create "herd immunity," by infecting as many as possible, and accepting the death of the already sick or medically-vulnerable, to bring the virus under control. According to the Wall Street Journal, 10-19-20, Dr. Anthony Fauci called the strategy flawed. "Never in the history of public health has herd immunity been used as a strategy for responding to an outbreak, let alone a pandemic.   It is scientifically and ethically problematic," said World Health Organization director Tedros Ghebreyesus on October 12, 2020. DOJ still does not test until a prisoner shows visible symptoms, guaranteeing the continued spread of the virus.

The problem is that most prisons are not providing ANY medical care due to the virus.

            In Carswell, it is next to impossible to wash clothes. At FMC Lexington, 91 quarantined, heading to Yazoo , with 200 to follow. In places like Waseca, Coleman, and other prisons with Unicor factories, have shown sharp increases in cases, since social distancing is not impossible and prisoners lack proper protection and cleaning supplies. Elkton transferred prisoners to Ft Dix and a quarter were found to be infected.

            In the 11th Circuit, the court has vacated and remanded the dismissal of  a FSA and CR filing to district court, with instructions: "because the district court addressed only a claim for relief under § 404(b) of the First Step Act ...and did not address Griffin’s claim for compassionate release under § 3582(c)(1)(A), we vacate the district court’s order denying relief and remand to allow the district court to consider (the) compassionate-release claim." US v Griffin, 19-14287, (11th Cir. 2020).

            In US v Taylor, 19-7616 (4th Cir. 10-14-20), the court remanded a 924c matter for resentencing, finding that "the elements of attempted Hobbs Act robbery do not invariable require the use, attempted us, or threatened use of physical force.'" In U.S. v. Glispie, 19-1224, (7th Cir. 10-14-20), the court vacated and remanding, finding that "previous conviction under the Ill. res. burglary stat. cannot be use to enhance (a) sentence under the ACCA."

            Although there is no question that Compassionate Release and Home Confinement issues are taking top billing, do not overlook 2255 inadequate representation or FSA matters, which are also available. Let not your heart be troubled.

 

Federal Legal Center, Inc.

Derek A. Gilna, JD, MRJ, Director

113 McHenry Rd.   #173

Buffalo Grove, IL   60089

dgilna1948@yahoo.com (alternate: dagilna1948@yahoo.com) .

Blogging at "Derek Gilna's Criminal Justice Blog."

Stimulus Checks for Prisoners Cleared by Federal Court Injunction; BOP Continues to Botch Pandemic Response

 

Stimulus Payment Applications Now Due 11-21-20; Paper Tax Returns Advisable

 

by Derek Gilna

 

            November 21, 2020 appears to be the new deadline for applications for 2019 non-filing prisoners to legally apply for and receive the $1200 stimulus checks. Today it appears the most reliable method of filing is to use a family member or close friend's address to file  a paper return.   Prisons are getting the word to provide these paper forms but it is ultimately up to you to get it done. My best guess is that Treasury, who directly issues the checks, will NOT hold back any sums due for restitution or child support.

            As expected, the transport of prisoners not tested for COVID-19 is spurring a steady increase in infection rates within the federal prison system.  Prisons like Waseca, Alderson, Rochester, Pekin, and others, are experiencing steady increases in cases, with at least one prisoner in Pekin, where multiple units are locked down, on a hospital ventilator, indicating that he received zero treatment before falling critically ill. Elkton, Pollock, Oakdale, Carswell, and Butner, where the virus has allegedly peaked, are now full of "recovered," chronically-ill prisoners whose life expectancy is more problematic.

            The DOJ bureaucracy is currently in full cover-up mode also, with individual prisons underreporting cases to national office, and stonewalling local media understandably concerned about health threats to surrounding communities. Sadly, Congressional members, more concerned about keeping their cushy jobs than in helping prisoners, are doing little to stop this. However, one man also up for reelection and his staff know EXACTLY what is going on and only waiting for the appropriate moment.

            In the midst of this turmoil and confusion, prisoners ARE still being released for Compassionate Release (CR), IF they have been denied by their warden, and have medical proof. We can help. Although CARES releases are tapering off, nothing like a well-drafted CR (which requires a letter from the institution regarding medical, major discipline,  and release location) to help getting more than a few overlooked prisoners CARES consideration and release. (CARES denials are not judicially reviewable.)

            In the circuits, the USDC for the Northern District of Illinois, granted a 2241 petition on Mathis grounds, vacated a life term, and ordered resentencing. Holmes v. Hudson, 19C 50154, 9-15-20. In the USDC for the D of New Jersey, a prisoner at Ft Dix won relief, under FSA, by successfully arguing that he was entitled to programming credits NOW, not in 2021, destroying DOJ arguments to the contrary. Goodman v. Ortiz, 20-7582, 8-25-20.

            In a no-contact SO case, the 5th Circuit overturned a blanket prohibition of post-release internet use, ruling that such conditions must be "narrowly tailored either by scope or by duration." US  v. Bacerra, 19-50447, 10-8-20. In the 10th Cir., the court ordered a FSA resentencing after finding that a "district court  (must) at least consider (a) claim that sentencing him as a CO would be error given subsequent decisional law that clarified the related CO provisions at issue." US v. Brown, 19-7039, 9-9-20.

            Let not your heart be troubled.

 

Federal Legal Center, Inc., Derek A. Gilna, JD, Director,

113 McHenry Rd. #173, Buffalo Grove, IL   60089 (Also in Indiana)

dgilna1948@yahoo.com, Blogging at "Derek Gilna's Criminal Justice" Blog.

Stimulus Checks Now Available to the Incarcerated; Waseca, Alderson, Sandstone, and Other Prisons See Increase in Cases Due to Prisoner Transfers by U.S. Marshal;

 

Marshal's Prisoner Transfers Fuels Virus Spikes; Prisoners CAN Receive Stimulus Checks: Federal Judge Orders Feds to Pay Up; Deadline to Apply is October 15

 

by Derek Gilna

 

            October saw continued bad COVID-19 news, but there was a positive development.   A US district court judge has certified a class action on behalf of all prisoners and ordered that the federal government must permit incarcerated prisoners and their families to receive the same $1200 stimulus checks that all should have received in the Spring. The late September ruling means that prisoners and their families can reapply through the IRS website, but MUST do so by October 15, especially if they did not file a tax return in the past two years.

            There is clear evidence that the DOJ resumption of federal prisoner transfers by the US Marshal's service is fueling a new spike in prisoner COVID-19 infections.   Although DOJ on its website in court filing brags about its "plan" to combat the virus, top officials are either ignorant of the precipitous increase in cases, or just don't care. Virtually all federal prisons are short staffed, as fearful employees stay home, or self-quarantine after virus exposure.

            COVID-19 has further compromised deficient prison medical care, which according to the DOJ Inspector General has not been able to fill open medical professional positions, and also effectively curtailed all outside medical trips for seriously-ill prisoners, most of whom are elderly and have life-threatening chronic conditions. It is nothing less than a national scandal, especially in a week where the heavily-protected President  fell ill.   Unlike the President, however, federal prisoners are completely on their own, often denied the most basic medical care and even medicine like cough drops. It is hard to believe that national office and AG Barr don't know.

            Waseca is approaching a 100% infection rate, after unscreened prisoners from the Okalahoma transfer center arrived and went into general population. Not far down the road, FMC Rochester, is now up to 13 staffers ill, and Sandstone is seeing an increase also. FCI McDowell, the east coast transfer site, is seeing a steady rise in new cases, as well as the customary shortage of cleaning supplies. At Alderson in West Virginia transfers have caused cases to steadily increase.  .

            Despite the distraction of the approaching election. The President's illness has refocused attention on COVID-19. Although many cities had begun to see a drop in new cases, it's not the case in federal prison, where prisoners no longer displaying symptoms counted, who are counted as "recovered", continue to feel weakened and ill, and need long term care,  NEVER provided in prison.

            The Supreme Court opened its new term today with remote operations, as Congress prepares for a bruising confirmation fight for Amy Coney Barrett. One of the cases on the docket is Borden v US, which asks whether the use of force clause in ACCA encompasses crimes with a mens rea of mere recklessness.

            Let not your heart be troubled, and do not let fear dominate your life.

 

Federal Legal Center, Inc., Derek A. Gilna, JD, Director,

113 McHenry Rd. #173, Buffalo Grove, Il   60089 (and Indiana)

dgilna1948@yahoo.com; blogging at Derek Gilna's Criminal Justice Blog.