Don't Sit on Your Remedies: The Important of 2255's; Sixth Circuit Reverses District Court Denials of Compassionate Release; Eighth Circuit Affirms Downward Departure for Non-Contact SO; Alderson Prisoner Dies, Others Hospitalized, as COVID Rages; Chicken Pox at Ft Dix; More Studies Question Long-Term Effectiveness of Current Vaccines; Case Updates
by Derek Gilna
With all of the concern over COVID in prisons, it is easy to let important potential avenue to relief go unaddressed. I am referring to Section 2255 , or habeas, petitions, which allege inadequate representation counsel as an avenue to get a new, lower sentence. If you are still on direct appeal, or completed it in the past ear, you should seriously consider this as a form of relief. We can help.
In US v. Estrada-Elias, No. 21-5680 (6th Cir. Nov. 24, 2021), that court noted that, "Horacio Raul Estrada-Elias, a ninety-year-old man suffering from a terminal illness (congestive heart failure, atrial fibrillation and chronic kidney disease), appeals the district court’s order denying his motion for compassionate release filed pursuant to 28 U.S.C. § 3582(c)(1)(A)(i). Estrada-Elias has spent fifteen years in prison for conspiracy to distribute marijuana. Because of his illness, Estrada-Elias is bedridden. He has never been convicted of a violent crime and has not received a single disciplinary infraction in prison. The warden of the prison in which Estrada-Elias is incarcerated agrees that Estrada-Elias should be released from custody...the district court denied his compassionate-release motion, finding that life in prison is “the only sentence that would be appropriate and that would protect the public” from this ninety-year-old terminally ill grandfather. We hold that the district court abused its discretion in denying Estrada-Elias’s compassionate-release motion."
In US v.
Davis, No. 21-1283 (8th Cir. Dec. 20, 2021), Fredrick M. Davis, a decorated US
combat veteran, pled guilty to attempted
coercion or enticement of a minor (who was in fact a law-enforcement officer)
in violation of 18 U.S.C. § 2422(a). The district court sentenced him to
time served and 120 months’ supervised release, including one year of home
confinement. The
In the
The
"Two
doses of the Oxford-AstraZeneca or Pfizer-BioNTech Covid-19
vaccines are substantially less effective at warding off omicron compared to
previous variants of the coronavirus, scientists have found...In a new study...,
researchers from the University of Oxford tested blood samples of people 28
days after their second dose of either vaccine. When omicron was introduced to
those samples, scientists reported 'a substantial fall' in the neutralizing
antibodies that fight off Covid compared to the immune responses seen against
earlier variants."
https://www.medrxiv.org/content/10.1101/2021.12.10.21267534v1. In other
words, no boosters, no effectiveness.
This explains why the study that showed vaccinated people in a
Outbreak of
SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a
Federal Prison —
On
The
experience in highly-vaccinated
This brings us to the situation at Alderson, and Waseca, where it once again appears the plan of DOJ is to achieve herd immunity by mixing the infected and uninfected, and accepting the consequences, which so far means at least one verified death, multiple hospitalizations, with some intubations, and well over 100 ill in each location, and many more with less serious symptoms. In the meantime, boosters are in short supply, and not available in places like Oakdale, an original hotbed of infection in 2020. (So much for that "Master Plan.")
As to
2255's, the case of
The First
Circuit held that “any reasonable attorney would have known of the availability
of the Brady claim since the co-defendants all raised it and since trial
counsel had preserved the issue by raising it in his motion for new trial.”
Following a jury trial, it came to light that the Government had failed to
disclose Brady material about the credibility of its key witnesses in
the case. All of Flores-Rivera’s co-defendants raised this issue on appeal, and
the First Circuit vacated their convictions and remanded their cases
for new trials. Flores-Rivera’s appellate attorney, however, did not raise that
ground, and her own appeal was denied.
She then filed a motion to vacate her conviction and sentence under 28
U.S.C. § 2255, arguing that her appellate council was ineffective for failing
to raise the Brady claim. The district court denied the motion, and
she appealed.
The court noted that any reasonable attorney would have known of the availability of the Brady claim since the co-defendants all raised it and since trial counsel had preserved the issue by raising it in his motion for new trial. Forgoing this obvious and strong claim in favor of the paltry ones that were raised was a choice resembling “rejecting a lifeboat in favor of two lily pads” and could not be considered valid strategy.
In US v. Nasir, 18-2888 (3d Cir. 2020), (3rd Cir. 2020), Nasir was convicted of maintaining a drug-involved premises under 21 U.S.C. § 856(a)(1); possession of marijuana with intent to distribute under 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); and being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court held him to be a career offender based on two state-level predicate drug offenses, and sentenced him to 210 months in prison. Nasir appealed, and, in its first ruling on his case, the Third Circuit sitting en banc vacated his firearms conviction under Rehaif and also remanded for resentencing on all charges, holding that the career-offender enhancement was not properly applied. The Government then sought and obtained certiorari to the Supreme Court, which vacated the judgment in light of the intervening decision in Greer—where the Court had held that Rehaif errors can only be a basis for plain-error relief if the defendant can show that they would have presented evidence at trial that they were unaware of their felon status.
On remand from the Supreme Court decision, the Third Circuit affirmed all of Nasir’s convictions but still remanded for resentencing, reiterating its prior ruling that he did not qualify for the career-offender enhancement. The plain language of the guidelines does not include inchoate “attempt” drug crimes like the one that was used as one of Nasir’s predicate offenses.
In
Over the weekend, Biden's "Build Back Better" bill appears to have failed, which means that the many pending sentencing reform bills will not have to contend with a piece of legislation which tied up both chambers for months. We also eagerly anticipate the DOJ publication of its time credit policy in the new year, to see if 2241's will have to be filed to enforce the clear purpose of First Step in this area. There are currently no bills pending reducing sentences to 65% of time served, but the bills that are pending should prove promising.
Be not afraid and let not your heart be troubled.
Derek Gilna, Director, JD, (De Paul Law School , 1975),
MARJ, (
federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries.
Blog: "Derek Gilna's Federal Criminal Justice
Musings and Reflections."
