Federal Judge Gives Prisoners a Heads Up On a Quicker Chance at Freedom

KATHERYN HAYES TUCKER ktucker@alm.com

A FederAl AppeAls court judge has sent a message to more than 100 prisoners who could be eligible to go free sooner because they were sentenced under a law that the U.S. Supreme Court has declared unconstitutional—but only if they hurry.

In a concurrence to an opinion that turns down a resentencing application for one inmate, Judge Beverly Martin of the U.S. Court of Appeals for the Eleventh Circuit listed 110 others—and there could be more—who may possibly be released under the same type of request. But they have a deadline of June 16, 2016, “as best I can tell,” wrote Martin.

The deadline is connected to the one year limit for filing applications for resentencing when a governing law is declared unconstitutional, according to criminal defense lawyers.

“What Judge Martin has done is a wonderful thing,” said Page Pate of Pate & Johnson. “Recognize how unusual this concurrence is. I cannot think of another situation where a judge has identified not only the possible relief but also identified the defendants.”

“It’s a great opinion,” said Brian Steel of the Steel Law Firm. “Who would want anybody to be serving an illegal sentence? She has highlighted it for the U.S. Attorney’s Office, the defendants and the families.”

The judge “wants to make sure everybody knows they are eligible,” said Lawrence Zimmerman. “She doesn’t want them to slip through the cracks.”

U.S. Attorney John Horn said his office has already begun working with federal public defenders and the U.S. probation office on cases like the ones Martin identified.

The action urged by Martin stems from the U.S. Supreme Court’s decision on June 16, 2015, in Johnson v. United States, 576 U.S. 135. In that matter, the justices ruled 8-1 that a part of the Armed Career Criminal Act known as the “residual clause” is unconstitutionally vague and therefore void.

The clause required judges to sentence defendants under the act in cases with prior convictions related to burglary, arson or extortion. The act itself increased the mandatory minimum sentence from 10 years to 15 years up to life for those convicted of three violent felonies or serious drug offenses.

The late Justice Antonin Scalia wrote for the court that the residual clause violated due process because it did not clearly define what constitutes a violent crime. But he did not specify whether the ruling would apply to people who had already be sentenced.

Federal courts around the country split on interpreting the Johnson decision as retroactive, with the Eleventh Circuit holding it wasn’t and turning down petitions for resentencing under Johnson.

On April 18 the Supreme Court ruled 7-1 in Welsch v. U.S., No. 15–6418, that Johnson should be applied retroactively. On April 20, an Eleventh Circuit panel of Martin, Judge Robin Rosenbaum and Judge Jill pryor ruled that Troy Robinson was not eligible for relief from the Johnson decision because he still had convictions for three violent crimes covered in a more specific part of the law that was not struck down.

In a concurrence, Martin added the list of “all the prisoners we turned away” and warned them of the approaching deadline.

“Although I have not taken the time to investigate the merits of these cases, below is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson,” Martin wrote. The application is a form of habeas relief offered when prisoners have exhausted their direct appeals.

Those prisoners filed their applications without the help of a lawyer, Martin wrote.

That’s because federal guidelines don’t allow for public defenders to assist in these petitions, pate said. so unless the prisoners can hire a private attorney, pate said, they must file the applications themselves.

Pate said he received a call from a former client at the federal prison in Atlanta this week after the Supreme Court clarified that Johnson was retroactive. That prisoner, like Robinson, is not eligible for resentencing. But those who are likely will hear about it through the prison grapevine, thanks to Martin’s concurrence, and can pick up forms in the library to file for resentencing.

“You’re going to have some busy jailhouse lawyers,” said Pate, who added he’d be willing to help pro bono with resentencing applications.

The case is In Re: Troy Robinson, No. 16-11304-D.

Mr. Zimmerman practices criminal defense in Local, State and Federal
Courts across the State of Georgia. Mr. Zimmerman handles cases in trial courts as well as appeals.

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