Friday, June 17, 2016

Get those Johnson motions in!

If you don't know what I'm talking about, then you probably don't have a client who has been enhanced under the Armed Career Criminal Act or the Career Offender guidelines.  Many of these clients may get their sentences reduced -- by a lot -- because of Johnson v. United States, 135 S. Ct. 2551 (2015).  But the one-year limitation period to file your Johnson motion expires a week from today, June 24, 2016.*

Here is Judge Martin's recent, helpful concurrence on the issue:
I agree that Troy Robinson cannot benefit from Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the residual clause.  I write separately to note that Mr. Robinson is one of dozens of prisoners who has tried to file similar applications based on Johnson.  Prior to yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016), all these applicants were turned away from our Court not because Johnson wouldn’t benefit them but because our Court held that Johnson could never apply in these cases. Some of those who filed applications in other courts have already been freed because they were serving an unconstitutional prison sentence.  As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson.  See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2482–83 (2005).
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.  I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications.  I have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the guidelines were mandatory together with those for which the guidelines were advisory).  I have also listed the district court in which each sentence was imposed, to the extent Federal Public Defender offices are monitoring these cases.

*Some, including Judge Martin, think it expires June 26.  But to be safe, file it next Friday.

In other news, the "terror" trial of Harlem Suarez is running into some snags.  From the Miami Herald:
Attorneys for the Key West terror suspect charged with trying to buy a bomb he planned to set off in South Florida have asked a judge to let them leave the case, saying their client refuses to take their advice as he approaches trial.
They also want the trial of Harlem Suarez, 24, who is accused of being an Islamic State sympathizer, postponed due to the flood of news coverage in the aftermath of the weekend Orlando nightclub massacre in which the gunman pledged allegiance to ISIL. Forty-nine people died, the worst mass shooting in U.S. history.
Suarez, who faces life in prison if convicted of planning to detonate a weapon of mass destruction at a beach filled with people, is scheduled to stand trial July 11.
“A continuance is in the interests of justice until such time as the heated reporting on the Orlando incident has subsided,” attorneys Richard Della Fera and Joshua Entin of Fort Lauderdale wrote in a motion filed Tuesday at U.S. District Court in Key West .
At the same time, the lawyers have asked to withdraw from the case, saying Suarez won’t listen to an “extreme extent.”
“Counsel believes that the attorney-client relationship with defendant has deteriorated to the point that it is best that defendant have new counsel,” the lawyers wrote in a motion filed Friday in U.S. District Court.
They asked Judge Jose Martinez for a hearing at which they can make their case that Suarez needs a new legal team. On Monday, Martinez referred the motions to Magistrate Judge Lurana Snow. Prosecutors hadn’t responded as of midday Tuesday.
In another filing by Della Fera and Entin, they ask the court to not let testify at trial Daniel Byman, who the government calls an expert on terrorism and the Islamic State known as ISIL, saying it flies in the face of fairness for Suarez.
“Clearly, the very mention of terrorism and the Islamic State invokes fear and worry in hearts and minds of every American citizen,” Suarez’s attorneys wrote. “It will be difficult enough for defendant to get a fair trial in the present climate where the media’s constant reporting and commentary on terrorism and terrorist attacks is omnipresent.”

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1 comment:

Anonymous said...

Troy Robinson replied and the Court granted.