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.  

Barrett Nominated to Supreme Court; BOP Counts Hold Steady, but Waseca Has over 200 Confirmed Cases

 

DOJ COVID-19 Disinformation Campaign; Amy Coney Barrett SCOTUS Nominee

 

by Derek Gilna

 

            Definitely a week with positive developments. As I predicted, Amy Coney Barrett of the 7th Circuit was nominated to the Supreme Court, and will be confirmed. A conservative in the Scalia mode, she has remained skeptical of the government's arguments when it tries to put or keep people in prison, but has sometimes rejected  credible claims by defendants and prisoners. Like Justice Gorsuch, she will not reflexively side with the government in criminal cases.

            According to the DOJ website,  57,698 tests have been completed, and 15,000 have been positive. However, credible reports from individual prisons suggest a much higher rate of infection. Minnesota continues to be hard hit, with over 200 positives at Waseca (and still climbing) , and almost 100 at Sandstone. FMC Rochester with 15, and FPC Duluth, site of a presidential fly-in rally Wednesday night, trail  with five. Forrest City continues has 75, Terre Haute has five dorms locked down, and  Carswell continues to suffer.

            Ponder these comments from DOJ Attorney General Robert Barr: "In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules.  In case after case, [DOJ has] advanced and defended hyper-aggressive extensions of the criminal law.  This is wrong and [DOJ] must stop doing it...." Progress has been made in DOJ, but  the federal prison system continues to fight scrutiny and  reform. Whey  FSA time credits go into effect the end of the year, there will be more public scrutiny of by far the worst federal agency.

            The Second Circuit provided an excellent FSA opinion whose reasoning and arguments should prove significant in all circuits.  US v. Zullo, No. 19-3218-CR (2d Cir. Sept. 25, 2020). " We must today decide whether the First Step Act empowered district courts evaluating...compassionate release to consider any extraordinary and compelling reason for release that a defendant might raise, or whether courts remain bound by U.S. Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”) § 1B1.13 Application Note 1(D), which makes the Bureau of Prisons the sole arbiter of whether most reasons qualify as extraordinary and compelling."

            "Application Note 1(D) does not apply to compassionate release motions brought directly to the court by a defendant under the First Step Act, we vacate and remand the district court’s contrary decision....the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.  Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court’s discretion...." This improves the odds for successful appeal of CRs.

            Let not your heart be troubled.

 

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."

 

Waseca Joins Carswell, Rochester, Terre Haute, and other BOP Facilities as COVID-Hot Spots; Prisoner Transfers Spark Virus Spread

 

Justice Ginsberg's Death Pushes SCOTUS Vacancy into Election Campaign:   What it Means

 

by Derek Gilna

 

            The death of celebrated Justice Ginsberg has made the future direction of the Supreme Court (SCOTUS) the top issue in the November election. Although the focus is on the President's pick, ( which will be 7th Circuit Appeals Court Judge Amy C.  Barrett), the real pressure is on Senators up for re-election. However, the impact on prisoner cases will be minimal regardless of the pick, since SCOTUS already has a conservative majority, all very capable of rendering positive decisions in the prisoner-rights area.

.           Ginsberg has best known for writing intelligent dissents (for the losing side), but the future of the court depends upon people like Justice Gorsuch, who believe that ALL people are entitled to constitutional protection. As the U.S. Sentencing Commission has ceased to be a force for reform, our focus turns to Congress to pass Second Step , and  also  to a President who hates the entrenched federal DOJ bureaucracy, and who has already done more for prisoners in 3 years than the previous president in 8.

            Attorney General Barr made news this week by attacking career prosecutors, whom he attacked as "headhunters," more interested in politics than justice.  In doing so, he reflects the public's view that the federal  prison system, like quarantines. is inhumane and unhealthy.  The  155,483 in custody  suffer virus surges in places like FMC Rochester, FCI Waseca, "house of horror" FMC Carswell, and Terre Haute, which all continue to struggle with basic "best health practices," and instead resort to a quiet information blackout to block prisoners communications with the outside world, in another, "Nothing to see here" moment. Both political parties should make a pledge for an independent oversight "ombudsman" to end this health nightmare.

              Has no one at DOJ or  the U.S Marshal's service read the CDC reports, which now states that EVERYONE should be tested if exposed to a sick person? Are all of these prisoner transfers worth the risk to prisoners and staff given the lack of medical care?    In the circuits,  the 7th  came up with two favorable decisions.In US v Bethany, 19-1754, the court remanded a FSA 401 petition, in light of US v.  Paladino, 401 F.3d 471,484 (2005). In US v Uriarte, 19-2092, (7th Cir. 9-15-20), the court affirmed the dc's grant of Section 403 FSA relief, which reduced the MM for a 924c.

            In US v. Easter, the court decided "whether, when considering a motion for sentence reduction under the FSA, a court must consider anew all of the 3553(a) factors...

Our answer is a resounding yes, (and we) vacate the denial of (his) motion and remand for reconsideration..." 19-2587, (3rd Cir. 9-15-20). In US v. Lee, 18-2391, the appeals court reversed an above-guidelines sentence, where there was nothing to show that the "criminal history has (any) bearing on the instant offenses,(and) does not justify the two-year upward variance...which nearly doubled (the) recommended sentence under the guidelines.   We therefore vacate...and remand for resentencing."

            Be not afraid and let not your heart be troubled.

 

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." 

BOP Still Refuses to Test Prisoners for COVID-19 as Prisoner Transfer Threaten New Outbreaks

 

Is the Newest DOJ Strategy to Infect Everyone, and Hope for the Best? Case updates

 

by Derek Gilna

 

            Anecdotal evidence appears to confirm that the federal prison system has adopted a policy of infecting everyone and hoping for "herd immunity?" If so, this is a very dangerous and cynical strategy which can't end well. With "Con Air" and bus transfers in full  "catch-up" mode, there has been no testing or quarantining of new arrivals, whether health, or formally infected, but "recovered,"  and no attempt to enforce CDC distancing guidelines.

            In those institutions where CDC has taken over, like Lexington, prisoners have been advised that rather than releasing large groups of prisoners to home confinement, they will be transferred to other institutions.  Waseca is also experiencing increased infection counts, but nationwide totals are expected to remain steady or rise slightly..

            Federal prison guard unions accuse the DOJ of, " making the virus explode.”

There have now been 126 reported deaths (which doesn't count the dozens that died in hospital or were belatedly released before passing), 93 of which were at higher risk of complications from COVID-19, and over 25% were seventy or older.  It does not appear that DOJ has made ONE COVID-risk  motion for compassionate release

            Nonetheless, the federal prison population is still down to 155,000, but has come at a cost of severe long-term health problems, including serious mental illness. According to one study, about 41% of adult respondents nationwide reported symptoms of clinical anxiety or depression during the third week of July 2020.  As a result of the flood of negative publicity for DOJ, during the pandemic, the public is all too familiar with the negative effects of mass incarceration in this country.

            The U.S. Supreme Court does not yet formally meet until October, but new petitions have caught our attention. Borden v. US, 19-5410, out of the Sixth Circuit, scheduled for a November 3 argument, asks whether the "use of force" clause in the ACCA encompasses crimes with a mens rea of mere recklessness. This case has attracted at least seven supportive amicus briefs, and a positive ruling will be of help to many with ACCA sentences.

            In the Fifth Circuit, in the case of US v. Franco, the court reaffirmed the general rule in a Compassionate Release(CR)  motion under First Step, that a Petitioner is NOT excused from filing a written request with the warden before filing a motion in court, stating that 3582(c)(1)(A) requires the 30-day notice.  Keep in mind that you do NOT need to file BPs on a CR denial before you file in court, only on CARES Act denials, an important distinction.

            Did your defense attorney raise issues of abuse, health problems, mental health issues in your case, or in the sentencing process?   If not, it can be argued that you received inadequate representation of counsel, and include that in your 2255.   Were you advised to go to trial instead of seeking a plea to a reduced sentence, and go to trial, despite no one in your district being found not guilty in the past year-all grounds for a 2255.    Let not your heart be troubled.

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

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

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

BOP Reopens Visiting Rooms and Starts Prisoner Transfers, Unleashing New Risks for Spread of COVID-19 Infection

 

Justice System Overwhelmed by COVID-19 and Compassionate Release (CR) Petitions

 

by Derek Gilna

 

            In these unsettled times, why should the "justice" system be any less turbulent?

Although the system has always been imperfect, at best, and far from color-blind, the fact remained that the mechanism remained intact. However, the federal district court system is now strained to the breaking point.   Court clerks are unable to docket mailed-in filings in a timely fashion,  taking days instead of hours. Judges and their law clerks are inundated with CR cases, and if they choose to read them, often issue form denials, without bothering to explain their decisions. Overworked public defenders have also not risen to the once-in-a-lifetime challenge.

            The outside world has reopened, with testing of even asymptomatic individuals, social distancing, sanitizing,  and mask-wearing, which has helped reduce infection counts. In a prison system that refuses to test all but the sickest, and is reopening to visitors in the near future and busing sick people to new institutions, this means that the virus will be with us into the new year. However, these climbing prison virus counts creates an opportunity for even the previously-denied petitioners to once again request CR, (after again sending the form request to the warden) citing the new facts.

            Waseca, Minnesota, now has a minimum of 50 new cases, and the local news media have taken notice. Terre Haute has well over a hundred cases and climbing. USP Lee has over 20 staffers infected. Seagoville is still a hotbed, as is Lompoc, and Forrest City, with numbers dropping, then climbing again. FMC Rochester has a lot of new cases apparently driven by transferees.  Those elsewhere deemed "recovered" continue to suffer, with no medical care. The DOJ website shows increased number of infections.

            . Senator Elizabeth Warren, who would be expected to have a prominent role in a Biden administration, is not impressed with the DOJ actions: "The culture of secrecy that's been allowed to develop in the nation's prisons...is antithetical to (their status) in a democratic society.   We have...officials who act as if this is their private information."  

            In the circuits, in US v Bailey, 18-5607 (consol.), (6th Cir. 9-1-20), the court in a white-collar Medicaid case reversed  and remanded two sentences, for an incorrect calculation of a loss amount, as well as a miscalculation of a two-level increase for "mass marketing." In US v Seabrook, 19-436, (2nd Cir., 8-4-20) the court vacated and remanded a sentence handed down after a guilty plea to wire fraud, where the court erred by applying the commercial bribery guideline dropped by the government, an argument that should be applicable in other circuits. In a bit of good news, DOJ statistics show that those released early under First Step and COVI-19 criteria have largely NOT re-offended, despite DOJ fear-mongering in court filings. The ACLU found the same result in its July report, "Decarceration and Crime During Covid-19."

            If your institution is still afflicted with the Coronavirus, and even if you have already been denied for CR, consider refiling with the institution, citing new facts.   Also, if you are still eligible for 2255 relief for inadequate representation of counsel, seek help time  before your time expires. Be not afraid, and let not your heart be troubled.

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

113 McHenry Rd., #173, Buffalo Grove, IL   60089 (And Indiana), dgilna1948@yahoo.com; "Derek Gilna's Criminal Justice Blog. "