Wright v. Dexter (CA9)

Wright v. Dexter, No. 08-73272 — The court denied permission to file a second or successive § 2254 petition raising a claim under Cunningham v. California, 549 U.S. 270 (2007), because Cunningham did not announce a new rule of constitutional law.

CA10 — memorandum disposition

Harris v. Wilmer, No. 08-1162 — This is an appeal from the denial of a § 2241 petition.  The petitioner pleaded guilty to a federal crime and received a 300-month sentence.  The plea agreement required him to waive his right to file a § 2255 motion challenging his sentence.  He filed one anyway, in federal court in Indiana, which was denied as untimely and barred by the plea agreement.  He did not appeal to the Seventh Circuit.  Later on, while imprisoned in Colorado, he filed a § 2241 petition challenging his conviction and sentence.  The district court denied it because the claims he raised were more appropriate for § 2255 motions and he had filed in the wrong district.  The Tenth Circuit affirmed because he had not shown that the § 2255 remedy was ineffective or inadequate merely because he was precluded from filing either a first (because of the plea agreement) or second (because of AEDPA) § 2255 motion.

CA11 — memorandum disposition

Antonelli v. Warden, USP Atlanta, No. 08-10608 — No authorization is required to file a second or successive § 2241 petition, but the court affirmed the denial of the § 2241 petition.

The petitioner had been convicted in 1978 of bank fraud and sentenced to 22 years in prison.  While on federal parole in 1994, he pleaded guilty to criminal trespass and DUI in Chicago.  He later sought to withdraw the guilty pleas because they were uncounseled by filing a § 2241 petition in Arkansas, claiming that the Federal Parole Commission erroneously deprived him of credit against his sentence.  The district court there denied relief, and the Eighth Circuit affirmed.  The district court in Georgia (where the petitioner is now incarcerated) denied the same § 2241 petition as second or successive.

The Eleventh Circuit ruled that under 28 U.S.C. § 2244(b), the second-or-successive petition bar imposed by AEDPA does not apply to § 2241 petitions.  The court agreed with the similar conclusions of the Seventh, Third, Ninth, and Sixth Circuits.  As long as the § 2241 petition is not the functional equivalent of either a prior § 2254 petition or § 2255 motion, AEDPA’s second-or-successive bar does not apply.  Because the petitioner in this case was ultimately challenging the denial of federal parole, and that claim was properly included in a § 2241 petition, the second-or-successive bar did not apply.

However, § 2241 does contain a procedural bar for claims already resolved in a prior § 2241 petition.  For this reason, the district court properly dismissed the § 2241 petition in this case.

Washington v. U.S. (CA7)

Washington v. U.S., No. 08-2787 (CA7) — The Seventh Circuit granted permission to file a delayed appeal, in the guise of ruling on an application for permission to file a second or successive 2255 motion.  In November 2005, the defendant was sentenced to 108 months in prison after pleading guilty to bank robbery.  His plea agreement contained a waiver of the right to appeal, which the defendant followed.  Instead, in April 2008 he filed a motion under Fed. R. Crim. P. 52(b) asking the court to recalculate his sentence in light of what he considered to be an erroneous application of the Guidelines.  The district court denied the motion, reasoning it was an improperly labeled 2255 motion, which he was improperly using as a substitute for an appeal.  But the Seventh Circuit reasoned that because the defendant was not seeking constitutional review of his sentence, the district court erred in characterizing his 52(b) motion as a 2255 motion.  Furthermore, the district court failed to warn the defendant that it was recharacterizing his 52(b) motion, as Castro v. United States, 540 U.S. 375 (2003), required it to do.  Accordingly, the Seventh Circuit construed the SOS application as a notice of appeal and returned it to the district court for processing.

CA4 — memorandum disposition

U.S. v. Alomia-Torres, No. 07-7771 — The court dismissed an appeal in a 2255 case for lack of jurisdiction because the notice of appeal was filed over 18 months after entry of judgment.  The petitioner sought to appeal the recharacterization of his 60(b) motion as a second or successive 2255 motion.

U.S. v. Lopez (CA9)

United States v. Lopez, No. 07-35589 (CA9) — The Ninth Circuit revised its July 16, 2008, opinion today.  It did not change either the holding of the case or the underlying reasoning.  The Ninth Circuit held that the Lopez’s underlying 2255 motion was second or successive, that she needed prior authorization to file the 2255 motion, and that although the court would construe her motion as a request for authorization, it would deny her request because she did not show by clear and convincing evidence that no reasonable factfinder would have found her guilty of the underlying offense.

In 2002 Lopez was indicted, along with her two roommates, on several counts of possession of crack cocaine with intent to distribute.  A confidential source testified at the trial, as did a government investigator, who testified that there was no material in the confidential source’s file that Brady v. Maryland, 373 U.S. 83 (1963), required the government to disclose.  But police in Spokane, Washington, had told the FBI agent responsible for investigating Lopez that they were not using the confidential source because his information was unreliable.  Spokane police did not transmit a written memorandum of this conclusion to the federal officers responsible for prosecuting Lopez.  Evidence was also admitted at the trial regarding at least one other controlled purchase of crack cocaine from Lopez and her associates in which the government used a different confidential source.  Lopez was convicted, and the Ninth Circuit affirmed her conviction on direct appeal in 2004.

In 2005, Lopez filed a 2255 motion raising an IAC claim, a claim of jury bias, a due process claim, and a claim under United States v. Booker, 543 U.S. 220 (2005).  The district court denied the motion, and Lopez apparently did not appeal.

Lopez filed the 2255 motion at issue in this case in 2006, after information regarding the “unreliable” source came to light in another case.  Counsel for Lopez discovered that the Spokane Police deemed this source unreliable for the first time at this point.  Lopez’s motion argued that the prosecution failed to disclose this information to her during her trial in 2002 in violation of Brady.  The district court denied the motion on the merits of the Brady claim, reasoning that the information was not material.  Lopez appealed to the Ninth Circuit.

The district court had ruled that Lopez’s Brady claim was not “second or successive” because she could not have discovered the claim until after her first 2255 motion had been resolved.  Even so, the Ninth Circuit held, the district court should not have allowed Lopez’s 2006 motion to go forward without authorization from the court of appeals.  In an effort to prevent “the government in effect [from profiting] from its failure to meet its obligations under Brady,” the court construed Lopez’s 2006 motion as a request to file a second or successive 2255 motion.  That request, in turn, required the court to determine whether the Spokane Police’s information would have established by clear and convincing evidence that no reasonable factfinder would have convicted Lopez.  The court concluded that this standard had not been met.

The Ninth Circuit concluded that the new information was not material; hence, Lopez could not make out a Brady violation, and a fortiori did not meet the standard for filing a second or successive 2255 motion.  This confidential source’s information did not directly inculpate Lopez.  Defense counsel had an ample opportunity to develop the nature and extent of the source’s bias and lack of credibility on cross-examination.  There was ample other direct evidence of Lopez’s guilt presented at the trial.  Hence, the late disclosure of the confidential source’s “unreliability” did not undermine confidence in the verdict.  Because there was no Brady violation, the court denied Lopez’s request for authorization to file a second or successive 2255 motion.  This was so even though the government was at fault for failing to disclose the information it knew about the reliability of the confidential source.