U. S. Supreme Court Happenings and Favorable Federal Circuit Opinions for the Week of March 30-April 4, 2025--
U. S. Supreme Court Happenings– Week Ending April 4, 2025 –
The Justices met for their March 28, 2025 conference today. We expect orders on Monday.
Last Monday, the U. S. Supreme issues a certiorari denial in Shockley v. Vandergriff, Warden, (No. 24–517)(S. Ct. Decided March 31, 2025)– Here is
how the six-page dissent of Justice Sotomayor joined by Justice Jacksongets started and ends:
A prisoner who seeks to appeal the denial of his petition for habeas corpus may do so only if “a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1).
Several Circuits have interpreted that requirement to mean that a certificate must issue so long as “one of the judges to whom the application was referred” votes to grant it. Thomas v.
United States, 328 F.3d 305, 309 (CA7 2003); Rule 22.3 (CA3 2011) (similar language); Rule 22(a)(3) (CA4 2023) (same, explaining that “the authority for a single judge to issue a certificate
derives from §2253”); Gen. Order 6.3(b) (CA9 2024) (“Pursuant to 28 U.S.C. §2253(c), a request to grant or expand a certificate of appealability may be granted by any one Judge on the
assigned panel”). In some courts, however, a panel majority can deny a certificate even if “a circuit . . . judge” on the panel votes to issue one. See, e.g., Williams v. Kelley, 858 F.3d
464 (CA8 2017); Crutsinger v. Davis, 929 F.3d 259(CA5 2019); United States v. Ellis, 779 Fed. Appx. 570 (CA10 2019). That latter practice deprived petitioner Lance Shockley of an appeal in
this case. I would have granted certiorari to resolve the split and decide whether the Courts of Appeal can dismiss an appeal after a judge votes to grant a certificate....
This case raised an entrenched Circuit split over an important question of statutory interpretation: Can a certificate of appealability be denied notwithstanding a circuit judge’s vote to
grant it? Unfortunately, the Court leaves the issue for another day. The Courts of Appeal, however, remain free to reconsider their operating rules and align them with the text and purpose
of § 2253.
1st Circuit
United States v. Mercado-Canizares, (Nos. 21-1903/ 22-1149)(1st Cir. April 2, 3035)– Jorge Mercado-Cañizares ("Mercado") appealed from a sixty- month sentence imposed for violating the terms of supervised release ("revocation sentence"). Mercado contended that the district court failed to articulate an adequate basis for an 82% upward variance from the top end of the sentencing range set by the United States Sentencing Guidelines ("Guidelines"). The Court agreed that the upward variance on his revocation sentence was procedurally flawed because the district court's explanation for the variance was insufficient and thus vacated the sentence and remanded for resentencing.
6th Circuit
United States v. Cervenak, (No. 23-3466)(6th Cir. April 2, 2025)– Congress instructed the Sentencing Commission to enhance the Sentencing Guidelines range for individuals convicted of a crime of violence or a controlled substance offense after having been previously convicted of two or more such offenses. 28 U.S.C. § 994(h). The Commission created the career-offender guideline in response to Congress’s directive. In this case, the Court had to decide if the district court properly increased Tyren Cervenak’s Guidelines range under the career-offender guideline. Specifically, we consider whether Cervenak’s prior convictions for robbery under Ohio law are “crimes of violence,” as the Guidelines use that term. The Court held that they are not, and vacated Cervenak’s sentence and remanded for resentencing.
11th Circuit
United States v. O’steen, (No. 22-13569)(11th Cir. April 4, 2025)– This appeal was the last chapter of a lengthy FBI investigation of the State Attorney for the Third Judicial Circuit of Florida,1 Jeffrey Alan Siegmeister. The investigation began in August 2018, after Andy Tong, whom Siegmeister was prosecuting for maintaining a gambling house in violation of Florida law, told the FBI that his attorney, Marion Michael O’Steen, would have to pay Siegmeister $50,000 for a favorable disposition of the case. The investigation concluded in February 2021, when a Middle District of Florida grand jury returned a twelve-count indictment against Siegmeister and O’Steen. Siegmeister was charged in eleven counts, O’Steen in four. Relevant here are Counts One through Four. Count One alleged that Siegmeister and O’Steen conspired from January 16, 2013, through December 19, 2019, to engage in bribery and extortion in violation of Florida law. Count Two alleged that they conspired from August 9, 2018, through May 16, 2019, to obtain $60,000 from Andy Tong, an O’Steen client, through extortion and extortion under color of official right in violation of the Hobbs Act. Count Three alleged that Siegmeister and O’Steen, aiding and abetting each other, achieved the object of the Count Two conspiracy: they obtained $60,000 from Andy Tong through extortion and extortion under color of official right in violation of the Hobbs Act.7 Count Four, brought against O’Steen alone, alleged that on or about August 23, 2018, he failed to file Form 8300 with the Financial Crimes Enforcement Network within fifteen days after he received more than $10,000 in one business transaction. Since O’Steen, as the principal, committed none of the Hobbs Act offenses Count Three alleged (Counts 3 and 4) and, as an accomplice, did not aid and abet their commission (Counts 7 and 8), the Court could not affirm his Count Three conviction and therefore reversed. The Court also concluded that the circumstantial evidence was insufficient to prove beyond a reasonable doubt that O’Steen knew of the reporting requirement by September 7, 2018, but failed to comply with it by that date as alleged in Count Four. The District Court erred in denying his motion for a judgment of acquittal on Count Four, and so his conviction on that count was also reversed.
COMMENT:We have been getting a lot of inquiries regarding the Bureau of Prisons (“BOP”) changes regarding halfway house. The BOP has announced a policy change, effective April 21, 2025, limiting prerelease custody under the Second Chance Act to a maximum of 60 days. This adjustment is a response to ongoing budget constraints. However, placements under the First Step Act will continue as planned. Additionally, individuals who have completed the Residential Drug Abuse Program (RDAP) will have their transfer dates adjusted to allow for a 125-day placement in a Residential Reentry Center (RRC).
The Second Chance Act, enacted in 2007, previously allowed inmates to transition into the community for up to a year, facilitating their reintegration into society. This policy change significantly reduces the time eligible inmates can spend in halfway houses or home confinement, which may impact their reentry process.
Based on the recent executive order of President Trump, Alert2020 believes that anyone who was convicted of being a felon in possession of a firearm and has a non-drug and non-violent predicate prior conviction should opt to have us look at their case to see if they may be able to challenge their § 922(g) conviction. Moreover, actor Mel Gibson, a supporter of President Donald Trump, will soon have his gun rights restored, according to The New York Times. Gibson is one of 10 people that the Justice Department has approved to own guns again, with Attorney General Pam Bondi having already approved the decision, sources told the newspaper Thursday. In 2011, Gibson pleaded no contest to a misdemeanor charge stemming from a domestic violence incident, as part of a plea bargain. A lawyer for Gibson had requested the move after he was denied purchasing a gun in Nevada. He did not serve time in prison but was sentenced to probation and community service.
In light of the recent En Banc Third Circuit decisions in Range and Daniels, and the recent decisions in Sixth, Eighth and Ninth Circuit, we suggest that anyone with a non-violent non-drug conviction where they were charged under § 922(g) should opt for the quick lookup we are extending this offer through February of 2025. In addition, the First, Fourth, Ninth, and Tenth Circuits have determined that district courts may consider § 403(a)’s non-retroactive changes in combination with other factors presented by an incarcerated person. These Circuits effectively allow district courts to consider an incarcerated person’s stacked charges as an extraordinary and compelling reason, so long as they present another factor that may warrant compassionate release. In order to conduct the lookup, we will need an outside contact’s name and telephone number, where you went to court, and your case number. We will get in touch with your contact and let them know if you have any potential relief available from the above remedies. Our case evaluation telephone number for the above is (832) 346-0220.
For the last 30 years, we have been very successful on direct appeals, 2255 motions, 2241 Petitions, First Step Act and Compassionate Release Motions, Earned Time Credits, DC Superior Court Petitions, State Post Conviction, Clemencies and Pardons and other specialized motions to mention a few avenues for relief we cover. The WCE is an excellent low-cost tool to see what can be done for you at any stage of the proceedings. It is thorough and detailed from day one of your case to present with our recommendations of any remedies available to you to gain relief.
If you are serious about fighting your case and want us to evaluate your case to see if you may have relief coming, request a Written Case
Evaluation.