Over the past three weeks, Russia has been reminded of the truth of General Omar Bradley’s old saw that “amateurs talk strategy, professionals talk logistics.” Likewise, two cases handed down last week underscore the truth that inmates talk substance, judges talk procedure.”
DeMarko Collins entered a guilty plea to being a felon in possession in violation of 18 U.S.C. 922(g) (1). DeMarko’s presentence report revealed that he had two prior felony convictions for crimes of violence, including a Missouri 2nd-degree robbery, which increased his Guidelines advisory sentencing range under USSG 2K1.1. As a result, his Guidelines advisory sentencing range under USSG 2K1.1 was increased.
Five months before DeMarko’s sentencing hearing, a divided 8th Circuit panel held in United States v. Bell that Missouri 2nd-degree robbery was not a crime of violence, but DeMarko’s attorney goofed and did not cite the decision in opposing the § 2K2.1 enhancement. The government’s plea for an upward variance was granted, and DeMarko was sentenced to 216 months in prison by the district court.
Appeal in the 8th Circuit
DeMarko filed an appeal against his conviction. He relied on Bell to argue that the 2K2.1 upgrade should not have been implemented. But while his appeal was pending, the 8th Circuit en banc overruled Bell and held that a Missouri 2nd-degree robbery is a violent felony after all. As a result, Demarko was unsuccessful in his appeal.
A post-conviction application pursuant to Section 2255 was submitted by DeMarko, who claimed that his lawyer should have mentioned Bell, which had been controlling authority and good law at the time of his sentencing. In denying the 2255, the district court stated that even if DeMarko was correct in believing that his lawyer should have brought up Bell before sentence, “he cannot demonstrate that he was prejudiced by” the error.
This was confirmed last week by the 8th Circuit, which held that by the time DeMarko on “direct appeal mentioned Bell in contesting his 2K2.1 enhancement based on a Missouri 2nd-degree robbery conviction, Bell had been overruled… As a result of the Guidelines, this earlier conviction was considered a predicate offense of violence once more. The doctrine of Strickland bias “concentrates on the question of whether counsel’s deficient performance renders the outcome of the trial unreliable or the proceeding fundamentally unfair… ” DeMarko was not denied a substantive or procedural right to which he is entitled under the law, and as a result, he “did not suffer any legally cognizable prejudice.”
A new motion
In the meantime, Cesar Gonzalez filed a 28 USC 2244 application for authorization to submit a second 2255 motion in the Ninth Circuit. A new rule of constitutional law, announced in the Supreme Court’s United States v. Davis decision, made it possible for him to argue that his 18 USC 924(c) conviction for having a gun in furtherance of a crime of violence was unconstitutional because his predicate crime, racketeering, was no longer a categorical crime of violence.
This past week, the 9th Circuit threw Cesar out of court, ruling that his new Davis argument had not been “previously unavailable” as required by 28 United States Code 2255(h) (2).
Cesar had submitted his 2255 motion by the time Davis was handed down, and the government had responded. Cesar, on the other hand, had not yet submitted his response. To establish that an argument was “previously unavailable” to him, the 9th Circuit determined that he must demonstrate “that the real-world circumstances that he faced prevented him, as a practical matter, from asserting his claim based on a new rule of law in his initial habeas proceeding.”
When it came to habeas relief or anything else, the Circuit noted it “recognized that pro se prisoners face unique difficulties,” adding that “language barriers, as Cesar cited in his case, add to those difficulties.” The Ninth Circuit, on the other hand, found “nothing in the text or context of AEDPA’s previously-unavailable-claim requirement suggesting that this limited exception to the otherwise broad prohibition against filing second or successive habeas proceedings was intended to be applied in a subjective fashion.”
It was determined by the 9th Circuit that Cesar could demonstrate that his new Davis argument was unavailable during his initial 2255, in which Davis issued just before Cesar filed his reply brief and a few months before the 2255 was decided. The 9th Circuit agreed. Cesar had all of the information he needed to support his claim, according to the Circuit, and there was no systemic or external barrier that prevented him from presenting his claim in his initial habeas proceeding, according to the Circuit.
Collins v. United States, Case No. 20-3662, 2022 U.S. App. LEXIS 6725 (8th Cir., March 16, 2022)
Gonzalez v. United States, Case No 20-71709, 2022 U.S. App. LEXIS 6943 (9th Cir., March 17, 2022)