Johnson v. US: A Landmark Decision for Prisoners

Supreme Court Voids Residuary Clause of ACCA in Landmark Decision

 

By Derek Gilna

 

            In a  landmark decision  to, the U.S. Supreme Court has struck down, voided, and set aside the residuary clause of the Armed Career Criminal Act (ACCA), while leaving the rest of ACCA intact. The impact of this cannot be overstated for those who received mandatory minimum sentence based upon the residuary clause.

            Simply put, in Johnson v. U.S., 13-7120,  the Supreme Court ruled that a district court as a part of the sentencing process cannot increase a sentence based upon the language of ACCA’s residuary clause; unfortunately, the court said, many district courts have classified as violent crimes offenses which did not rise to the level of violent acts, accepting the argument of prosecutors in almost every instance that they argued for an ACCA mandatory minimum sentence.  I must emphasize the rest of ACCA has been left intact, so if you were sentenced under anything OTHER than the residuary clause, this decision does not assist you.

            Since the residuary clause has been found to be unconstitutional, this means that relief cannot be denied to those whose appeals or habeas corpus claims are still pending. A strong argument exists for vacating the sentences of even those where appeals have been exhausted.  However, the court has not stated that the decision is retroactive in its application, so these arguments must be made with caution.  However, those who received sentences based upon the residuary clause finally have an argument that they can make that the courts will have to listen to. As stated by the Supreme Court, “imposing an increased sentence under ACCA’s residual clause violates due process.”

 

Derek Gilna, 113 McHenry #173, Buffalo Grove, IL  60089

  dgilna1948@yahoo.com

Smarter Sentencing Act Progresses in House and Senate

Smarter Sentencing Act Continues to Gain Support

 

By Derek Gilna

 

In a week where no new Supreme Court decisions impacted prisoners, and no new federal clemency petitions were granted, I turn my attention to Congressional action on the Smarter Sentencing Act of 2015. The Act would reduce the mandatory minimum sentencing for drug offenses, and reduce sentences of “couriers,” defined as those whose “offense was limited to transporting or story drugs or money.”

 I previously reported on the recent Bipartisan Summit on Criminal Justice Reform, where a group of lawmakers, activists, and political operatives from many different ideological backgrounds discussed this bill and others like it.  Conferences like this make it easier for Congressmen and Senators to support prisoner relief legislation.

The conference also focused on the Redeem Act, a bill that proposes a number of reforms on solitary confinement and the sealing of some criminal records, and other legislation that would allow prisoners to access Pell Grants to further their college education while in prison.  These legislative proposals and the positive energy from sentence-relief conferences and news articles have helped to produce a positive energy that will only help the cause of sentence reform.

It appears, although some observers are skeptical, that Democrat Hillary Clinton will run her Presidential campaign from the left, and she has already made noises about pushing sentencing reform.  Rand Paul, on the Republican side, has also been a consistent supporter of reform, and recently gained widespread positive publicity for his defeat of some of the National Security Agencies domestic surveillance capabilities (also widely used for warrantless-and illegal- surveillance of many now in federal custody.)

Meanwhile, the Smarter Sentencing Act continues to steadily pick up co-sponsors, a sure sign that it is gaining momentum in the votes department. As of June 3, the House version had 44 cosponsors from both parties (out of 435 Representatives), while the Senate version had 12 (out of 100 total Senators). Obviously the closer it gets to a majority of each house acting as co-sponsors, the more likely it is to pass and become law. It has not yet been voted out of Committee in the Senate, but that may be attributable more to the fracas regarding the confirmation hearings of the new Attorney General than anything else.

 

Derek Gilna, 113 McHenry Rd., #173, Buffalo Grove, IL  60089. dgilna1948@yahoo.com. (847) 878-0160.

 

 

New Evidence of Serious Prosecutorial Misconduct

Entire Orange County Prosecutor’s Office Disqualified for Misconduct

 

By Derek Gilna

 

            An isolated incident or just the tip of the iceberg?  Many of you in custody already know the answer.  The ENTIRE legal staff of the Orange County, California Prosecutor’s Office (250 attorneys) has been disqualified by a federal judge in that state for prosecutorial misconduct, including the systematic concealment of exculpatory evidence and the use of coached, perjured testimony of confidential informants and jailhouse snitches. Judge Thomas Goethals took the extraordinary action after reviewing facts in the case of Scott Dekraai in Santa Ana, California.

            An investigation showed that, coached by prosecutors and sheriff’s deputies,, jailhouse snitches fabricated the confessions implicating dozens of prisoners.  Additionally, prosecutors and deputies constructed an entire computerized data base that remained secret regarding this jailhouse informant system, and concealed its existence despite numerous specific discovery order issued by the Court.

            What does this mean to your case?  My experience shows that state and local law enforcement are much more prone to this kind of affirmative concealment than federal authorities, but this is not always the case, especially where state and federal authorities work together on an investigation.  There is one case in Texas that I am working on where I know that a similar scenario took place.

            However, there have also been dozens of cases that I have reviewed where the entire body of evidence in the case, including many raw investigative materials that might have assisted defense lawyers on the district court level, was either not requested by defense counsel, or not produced. (The Brady case requires ALL of this material to be produced, whether requested or not.)

            The problem of course is proof, and that is always going to be the sticking point.  In instances where true prosecutorial or law enforcement misconduct has occurred, some investigation and digging is necessary.  To convince a court, it is not enough to have a mere suspicion; you must have some hard evidence, either in the form of affidavits, or some other proof to show that you are innocent of the charges of which you were convicted. Whoever you hire to handle your case must also know where to dig, for facts not only on your case, but other related cases in the same jurisdiction, because bad apples come by the basketful, not one at a time.  There are experienced prisoner-rights counsels in these jurisdictions, many of whom have worked with Prison Legal News, handling cases at reasonable costs.  Do you have such a case?

 

Derek Gilna, 113 McHenry Rd. #173,

 Buffalo Grove, IL  60089.

  dgilna1948@yahoo.com

Smarter Sentencing Act Reintroduced with Beter Chance of Passage

Reintroduction of Smarter Sentencing Act Has Broad Bipartisan Support

 

By Derek Gilna

 

            The Smarter Sentencing Act (SSA), first introduced in 2014 and reintroduced into the current, two-year Congressional session, with many co-sponsors from both major political parties, is the newest manifestation of the country’s disgust with the current state of the federal criminal justice system.  There has been both rioting and peaceful protests around the country against that system.  While DOJ and BOP officials trumpet a paltry reduction of 5000 in the federal prisoner count, to 215,000, tens of thousands of prisoners still languish, and their families and communities suffer unnecessarily.

            We are all familiar with SSA’s provisions, which give some degree of power back to the judges to mitigate the burden of mandatory minimum sentencing, and curb some the system’s worst abuses. I like its chances of passage.  Like any struggling addict or alcoholic, however, the federal criminal justice system continues to be “hooked” or “drunk” on the big-business of mass incarceration.  Over-zealous prosecutors continue to harass defendants and their over-worked public defenders or underpaid appointed counsel into one-sided plea agreements, and punish those exercising their Constitutionally guaranteed right to jury trial with long sentences and added enhancements, and allow hearsay evidence and “Ghost Dope” to affect sentencing. 

            However, public support for this system has collapsed.  Even the aged Senator Charles Grassley of Iowa, Chairman of the Senate Judiciary Committee, a roadblock to sentencing reform, is feeling the heat.  Over 50 Iowa pastors recently signed a bill imploring him to support federal sentencing reform. “The time has come...to consider the various bipartisan bills, reach consensus, and enact broad reforms that respect ..dignity, …limit disproportionate sentences,…and encourage reintegration of (released prisoners),” they wrote.

            Also feeling some hear, the US Attorney in Chicago  recently tossed dozens of drug cases based upon “stash-house”  entrapment (where agents trolled and encouraged known felons to burglarize houses they claimed held drugs) when they were criticized by more than one federal judge for unfairly targeting minorities. The US Supreme Court recently struck down a North Carolina law requiring GPS monitoring of certain defendants after they had already completed their sentences, a violation of Fourth Amendment guarantees against unreasonable search and seizure.

            There has also been new public pressure on improving on better programming in the BOP system, which in the past in the BOP has often merely constituted “check off the box” instead of actual education. A new bill introduced recently calls for the return of Pell grants to help pay for prisoner college studies. More and more lawsuits are being filed regarding poor medical treatment (including several by this office), and pressure on the BOP to actually implement the compassionate release policy already on its books (including a recent one granted from Butner by me), as well as constant pressure on the BOP bureaucracy to actually do its job as spelled out in their program statements. It is only the beginning.

           

 

Derek Gilna, 113 McHenry Rd. #173, Buffalo Grove, IL  60089, dgilna1948@yahoo.com

White-Collar Sentencing Changes

White Collar Sentencing Changes Sent to Congress but No New Clemencies

Other New Prospects for Sentence Relief After Denied Appeals, 2255's

 

by Derek Gilna

 

            As expected, the newest US Sentencing Commission changes for this cycle have been sent to Congress, and will become effective November 1, 2015.  There is still no word on retroactivity.  Included in those changes are amendments to the concept of "Relevant Conduct," generally used by federal prosecutors to unfairly add sentence time above and beyond that agreed on in good faith by the accused in plea negotiations. Although I don't think that the changes go far enough, it's a start.  Once again, we will wait to see what the retroactive application is of these changes.

            Unfortunately, there have been no new clemencies granted since Easter, and although I remain cautiously optimistic,  this administration still is on pace to underutilize this sentence relief option compared to previous Presidents.

            I would like to revisit the case of BEGAY (Begay v. US,553 US 137, (2013), which according to our friends in the law library at FCI Sheridan, Oregon, has been successfully applied in recent 2241's filed in the 9th Circuit to vacate sentencing enhancements.  As we know, 2241's are an underutilized procedural tool when used properly to attack various inconsistencies in the sentencing process, even when you have already failed on direct appeal and 2255 filings.  Here's how it works in BEGAY fact situations.

             First, you have to have prior state offenses that although they sound like they would be serious crimes, do not meet the federal definition of predicate violent offenses.   In Begay's case it was DUI offenses, which the SC noted were not violent offenses that qualified as enhancing predicate offenses in alleged Career Offenders Situations.  This precedent has been followed already in the 9th, 8th, and 7th Circuits, with only the 5th standing athwart the progress on the issue, on other grounds. It is unsettled law in other circuits.

            Obviously, there is much more to say on  this issue than this brief summary allows, and 2241's can be granted for other reasons other than a Begay issue, but the possibility of sentence relief is there, if properly researched and addressed.  We look forward to your questions on whether you qualify for this relief.

 

Derek Gilna, JD

113 McHenry #173

Buffalo Grove, IL  60089

(847) 878-0160

dgilna1948@yahoo.com

 

           

Hillary Clinton's Speech Should positively Impact Sentence Reform

Sentencing Commission and Congressional Legislative Updates

 

By Derek Gilna

 

            On April 30, the U.S. Sentencing Commission promulgated its newest white-collar sentencing reforms, which will have the effect of lowering sentences for most offenders. That new sentencing change will go into effect in November unless changed by Congress (which has never happened.)  There is no word yet on whether said changes will be retroactive. Additionally, the Smart Sentencing Act continues to work its way through Congress, and hopefully will gain some traction in the coming months as candidates try to position themselves as ahead of the curve on social reform, highlighted by the riots against police misconduct in Baltimore and demonstrations in major cities across the country on this and similar social justice issues.

In the past week, I commented on Hillary Clinton’s most recent major speech which focused on sentencing and incarceration reform.  Although that speech carved out no new ground and offered no immediate legislative solutions, it did put these two oft-ignored subjects front and center into the Presidential race.   Floating these ideas early in the election cycle was a low-risk method of gauging public opinion on them before the campaign really gets into full-swing, and gives her a chance to respond to any negative reactions.   Although almost everything Hillary says is automatically attacked by her opponents, these comments were not.  This is significant for several reasons.

            One, Congressmen and Senators are not leaders, and shun controversy. Widespread public condemnation of recent police and prosecutorial misconduct, coupled with Hillary’s comments, has created political cover for legislators to actually do something to promote sentence reform.

            Two, contrary to what the media says, there is little to no difference between the major political parties on any major issue, other than nonsensical social ones that arguably should NOT be an area of government concern anyway (like abortion and same-sex marriage). Getting out front on an issue like sentence relief and prison reform allows a candidate to set himself or herself apart from the rest of the “suits” as a compassionate, forward-thinking individual worthy of a vote, while also allowing them to emphasize economic and tax savings from a reduction of prisoner counts.

            Third, the speech shows that the “War on crime” is, if not dead, on life support.  “Soft on Crime” is also a campaign catch-phrase that is D.O.A.  There is no major public figure in either party seeking longer sentences or seeking an increase in prisoner counts.

            I would be pleased to work with you in reviewing your case and seeing if you are entitled to relief, either from  sentencing errors, poor defense attorney representation, inadequate or deliberately indifferent prison medical care, or failure to grant a deserved compassionate release. 

 

Federal Legal Center, Inc.

 

Derek Gilna

113 McHenry #173

Buffalo Grove, Il  60089

(847) 878-0160

dgilna1948@yahoo.com

Supreme Court News

Special Newsletter for April 22, 2015

 

By Derek Gilna

 

            The US Supreme Court has once again pushed back against overly intrusive government searches of defendants in a routine encounter with police where police have no grounds for such a search.  The newly-announced decision in Rodriguez v U.S., 13-9972, reversed and remanded an Eighth Circuit ruling that the search of defendant’s car by a drug sniffing dog was within the scope of the traffic stop for a minor traffic violation, and that an eight-minute delay for the motorist was constitutionally acceptable.

            Not so fast, the Supreme Court said, calling the search “unlawful.” The Supreme Court has previously struck down convictions based upon evidence gained as a result of a warrantless placement of a GPS tracking device on a defendant’s motor vehicle.  Interestingly, Justice Scalia, generally known for his conservative views, once again joined the majority of justices to further limit government’s ability to arrest people without probable cause. The justices were not persuaded by the government argument that the intrusion on defendant rights was justified by the Government’s interest in stopping the flow of illegal drugs. (This is the same faulty Government rationale used to justify TSA searching Granny at airports in the name of stopping “terrorism.”)

            It is hard to overestimate the value of this decision.  Although obviously it is limited to the facts of this case, it sets clear limits on what is and isn’t acceptable in police stops.   Of course, it would not be helpful in cases where the defendant is already under investigation by police or fleeing the scene of a crime.

            Brick by brick the high court is starting to slowly build a wall of protection of citizen rights, to rein in the natural tendency of law enforcement to expand its power beyond what is necessary to perform its core function of protecting its citizens against violence and disaster.  All we have to do is read the newspaper to see that the public is fed up with police misconduct in patrolling the streets, and ready to have a discussion as to what and what is not proper policing.

Is this ruling applicable to your case and your set of facts.

 

Derek Gilna

113 McHenry #173

Buffalo Grove, IL  60089

dgilna1948@yahoo.com