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July 5, 2023
Thorough and thoughtful account of Jones v. Hendrix and a pitch for a congressional response
Adam Unikowsky has this lengthy posting at his Substack site titled "Imprisoning innocent people is bad; Section 2255 should be fixed immediately." The full piece is worth a full read for anyone interested in federal habeas law and the Supreme Court's work in Jones v. Hendrix (basics here). Here is a taste and a preview (emphasis from original):
Jones’s holding seems pretty ghoulish. But Justice Thomas’s majority opinion is well-written and persuasive. He puts forward a powerful argument that under the plain text of the applicable federal statutes, federal prisoners are forbidden from bringing this type of challenge.
Justice Jackson’s dissent is also well-written and persuasive. She puts forward a powerful argument that the majority’s interpretation conflicts with congressional intent and would lead to unfair consequences. In the end, Jones presents a tough, close issue.
The purpose of this post is not to defend one side or the other of Jones. It’s to advocate a statutory fix that would allow federal prisoners to file successive Section 2255 petitions when new Supreme Court decisions establish their innocence.
This is not a tough, close issue. It is an obviously correct position that should prevail by unanimous voice votes in the House and Senate.
Prior related posts:
- By expected 6-3 vote, SCOTUS in Jones v. Hendrix limits reach of habeas corpus statute, § 2241, for federal prisoners
- Early (mostly critical) commentary on Jones v. Hendrix
- How many legally innocent federal prisoners are stymied by Jones and do they have other pathways to relief?
- A little more critical commentary on Jones v. Hendrix
July 5, 2023 at 10:18 PM | Permalink
Comments
If a fix is done, it would have to be carefully drafted to distinguish between instructional errors of the type represented by Jones (i.e. defendant may be guilty or may not be as offense now includes additional elements) and errors of the type represented by Dubin (conduct clearly not within scope of the statute).
But today, we got two cases from the Eighth Circuit showing how difficult this issue might be (one was direct appeal and one was a first 2255 petition). Both involve the application of Borden and what qualifies as a crime of violence. One case -- United States v. Lung'aho (https://ecf.ca8.uscourts.gov/opndir/23/07/223168P.pdf) finds that arson is not a crime of violence because the mental state of malice is insufficient. The other -- Janis v. United States (https://ecf.ca8.uscourts.gov/opndir/23/07/222471P.pdf) -- finds that murder in the second degree is a crime of violence despite only having a mental state of malice.
Posted by: tmm | Jul 6, 2023 11:56:55 AM
tmm --
How odd. Whether any given act features violence depends on the act itself and not on the mental state of the person who does it. Mental state is internal; violence is external.
Posted by: Bill Otis | Jul 6, 2023 2:38:23 PM
Apparently, that's the way that the Eighth is interpreting Borden. I think it's reading the U.S. Supreme's finding that reckless is insufficient as requiring something more and looking at the nature of the offense to determine if "malicious" conduct is sufficient. Given that Borden was a weird 4-1-4 split (and I am not sure that Justice Thomas's opinion would not narrow the definition of crime of violence more than Justice Kagan's does), I don't know if the Eighth's reading is solid. But this seems to be the never ending quandry that the federal definitions of "violent felony" and "crimes of violence" have formed with a focus on the elements including mens rea to explain why non-violent crimes are actually violent and why violent crimes are actually non-violent. On the specific facts of these two cases, the result might be right, but the logic of the distinction between the two underlying statutes escapes me.
Posted by: tmm | Jul 6, 2023 3:11:27 PM
TMM-
Why do you distinguish between cases that narrow the scope of the statute by requiring something more in the jury instructions and cases saying that certain conduct is, as a matter of law, beyond the scope of the statute?
If you mean to say that instructional errors ought not to be cognizable on 2255 (much less a successive 2255), they are not. To prevail the prisoner must show that under the proper construction of the statute (ie, with proper instructions), no rational juror would have voted to convict. If the prisoner makes that showing, he walks out of prison -- he doesn't get a new trial.
Posted by: Da man | Jul 7, 2023 8:36:41 PM
Da Man.
As I am seeing, the issue presented by this proposal is whether 2241 should be an avenue for claims that were not raised on direct appeal (or as IAC claims in 2255) because the law at the time did not support the argument.
I am viewing this through a state practice lens (particularly since the court's here tend to incorporate the federal concepts into a state practice) so I am not 100% sure on the limits of what claims could be raised under 2255 (or how a particular amendment to solve the Jones "problem" might alter those limits.)
My own experience is that delay in granting a new trial has a similar impact as delay in the original trial. The passage of time causes witnesses to disappear (whether through death or relocation) and memories to become foggy. So I generally approve of heightened requirements for "late claims" because, in most cases, the original, imperfect, trial will be more accurate than a new trial.
As I understand the claim in Jones, it is a claim of sufficiency/instructional error (which tends to be flip sides of the same coin because there is no reason to present evidence on something that is not an element). The case supporting the claim does not make the alleged conduct legal. It simply requires the showing of something else. (In the Jones case, an additional mens rea requirement). If you could go back in time and retry the case, it s more likely than not that a rational jury would find the defendant guilty.
I see Dubin as raising a different type of claim. In Dubin, it's not a simple matter of a missing element. It is that the alleged conduct is not covered by the relevant statute. If you could go back in time and retry the case, the defendant would get a directed verdict because the conduct charged in the indictment is not a crime.
So, if they are going to rewrite 2255 and 2241 to allow these types of claims, I want the language to exclude relief based on decisions like Reheif (the underlying case in Jones) and limit relief to claims based on things like Dubin.
Posted by: tmm | Jul 11, 2023 2:40:23 PM