New opinions — a 2255 blockbuster, strip searches for 12-year-olds, and an antitrust case

US v. Ross – criminal 2255 – vacate denial and instruct to dismiss — Jordan

In a major ruling, the Third Circuit today issued an opinion that appears to mean that 28 U.S.C. § 2255 does not permit prisoners to challenge an illegal conviction and sentence if the defendant also was convicted on other counts resulting in equal or greater concurrent sentences. I suspect the opinion is incorrect.

The defendant here, Edward Ross, was convicted on numerous counts, one of them being possession of a machine gun in violation of 18 USC § 922(o). On that count, Ross was sentenced to 10 years in prison plus a $100 special assessment. Ross also received 10-year sentences on other 6 counts, with all 7 sentences to run concurrently.

As to the machine-gun-possession charge, the jury was not required to find that Ross knew the gun was a machine gun. (It seems at least possible he didn’t know: the gun in question was made to be semi-automatic, and had been converted to automatic by changing the firing pin, and it was found in Ross’s residence, not in use.) Six other circuits have held that knowledge that the gun was a machine gun is an element of the crime. Today’s opinion said, “Given the opportunity, we might join our sister circuits,” and Ross “may be right that the 922(o) conviction is unlawful.”

Ross’s trial lawyer did not object to the instruction, and his direct-appeal lawyer did not raise the issue either. In a 2255 motion, he argued that prior counsel were ineffective for failing to raise the machine-gun-knowledge issue. “Sounds like a winner,” I would have said.

After the district court denied relief on prejudice grounds, the government argued on appeal  (it is not clear from the opinion whether they made the argument below) that Ross’s challenge to the 922(o) conviction was not even cognizable under 2255. Today, the Third Circuit agreed, ruling that, even if Ross’s trial and appellate counsel performed deficiently and even if Ross were prejudiced, he still would not be entitled to relief because his claim fails a threshold “custody” requirement.

Here was the panel’s reasoning. First, “[t]he plain text of 2255 provides relief only to those prisoners who claim the right to be released from ‘custody.’” Second, the special assessment that Ross received as a result of the 922(o) conviction did not satisfy this “custody” requirement because it was not severe. Third, any collateral consequences resulting from the 922(o) conviction did not satisfy “custody” because Ross failed to show any consequences uniquely attributable to that conviction. Thus, the court held that the relief Ross sought was not cognizable under 2255, and it vacated the district court’s order denying relief and directed the court to dismiss instead.

I have real doubts about this reasoning. Here is what 2255 says:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Here, the court reasoned as if 2255 said that a prisoner’s claims must each challenge his custody. But what 2255 says is that a prisoner in custody may move to vacate or correct his sentence. Ross is unquestionably a prisoner in custody on his federal sentence. So, at least as I read it, the text of 2255 does not support the reasoning in the opinion. And the opinion does not cite any previous case for the proposition that a prisoner who’s in custody can have his 2255 dismissed because his claims do not also meet a custody requirement.

So the Ross opinion strikes me as wrong — badly wrong, even — and warranting rehearing. But I haven’t read the briefs or pulled the cases cited, and today’s ruling was sought by top-flight AUSAs and embraced by 3 smart federal appellate judges, so maybe I’m missing something big.

Joining Jordan were Fisher and Shwartz. Arguing counsel were Penn Law student John McClam (with 3 Dechert lawyers on the brief, two of whom recently clerked for Third Circuit judges) for Ross and Robert Zauzmer for the government.


J.B. v. Fassnacht – juvenile civil rights – reversal – Fuentes

A 12-year-old was accused of doing something illegal and was ordered to be detained, analogous to an adult who is arrested and taken to jail before trial. The juvenile detention center where he was taken had a practice of strip-searching every child during intake. So the 12-year-old was put behind a shower curtain, and then, observed by an officer, he was “asked to turn around, drop his pants and underwear, bend over, spread his buttocks, and cough.”

No contraband was found. The accusation against the 12-year-old was later resolved when he agreed to write a letter saying he was sorry.

In 2011, the Supreme Court in Florence held that it was permissible to strip-search all arrestees before admitting them to a jail’s general population. But Florence was a case about strip-searching adults. Today, the Third Circuit held that Florence applies to juveniles, too.

Has a 12-year-old entered juvenile custody smuggling contraband in his or her rectum, ever? The opinion–oddly, in my view–does not say. Isn’t that relevant to whether these automatic, uniquely intrusive searches of children are warranted?

Instead, the opinion relies upon “the realities of detention, irrespective of age,” a study indicating that elementary-aged children are being recruited into gangs, the observation that “less invasive searches may leave undetected markings on the body indicating self mutilation or potential abuse in the home,” and the like, none of which strike me as compelling rationales for forcing 12-year-olds to strip naked for officers and expose their rectums.

Joining Fuentes were Nygaard and Roth. Arguing counsel were David MacMain for the 12-year-old and Kevin Allen for the defendants.


In re: Chocolate Confectionary Antitrust Litigation — antitrust — affirmance — Fisher

The Third Circuit affirmed the district court’s grant of summary judgment in favor of Hershey, Nestle, and Mars in this antitrust appeal, holding that the evidence was insufficient to create a reasonable inference of a price-fixing conspiracy.

Joining Fisher were Hardiman and Roth. Arguing counsel were Steve Shadowen and Laddie Montague Jr. for the appellants and William Cavanaugh Jr, David Marx, and Peter Moll for the chocolate makers.

5 thoughts on “New opinions — a 2255 blockbuster, strip searches for 12-year-olds, and an antitrust case

  1. Peter Goldberger

    Isn’t the statutory issue in Reed not whether he was a “prisoner in custody” but rather whether he was “claiming the right to be released” by reason of his challenge to the conviction? It seems to me that he was “claiming the right to be released” from the custody imposed on account of this particular conviction. In any event, the Supreme Court says that 2255 must not be construed literally, but rather to “afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis v. United States, 417 U.S. 333, 343, 94 S. Ct. 2298, 2304 (1974). Is federal habeas relief available to a state prisoner from an invalid conviction that resulted in a physically concurrent sentence? Was 2241 relief available to a federal prisoner on such grounds before the enactment of 2255? It seems to me that that is the question. What do Hertz & Liebman say about that?

  2. Peter Parker

    The opinion in J.B. is kind of odd; it’s a tapestry of quotes, none of which appears to come from the record at all (say what you will about footnote citations, it’s a hell of a lot easier to keep track of the sources of authority when the citations are above the margin). I don’t think the outcome necessarily followed and I am surprised that the panel went the direction it did, given its composition. But perhaps I should read it again…

    (Honestly, after the uncorrected Reyes we-confused-2244-and-regular-retroactivity-but-don’t-feel-like-granting-the-GOVERNMENT’S-motion-to-correct debacle, CA3 has lost some of its presumption of correctness. I still do not understand how that one happened.)

  3. Matthew Stiegler Post author

    Peter G., I agree with you that “right to be released” is the more textually plausible provision, and I also agree that it seems like Ross satisfies it. “Release” can’t be read narrowly because 2255 expressly permits claims that “the sentence was in excess of the maximum authorized by law,” as Ross did here.

    Before Ross I would have been sure that habeas was available to challenge concurrent sentences, but offhand I’m not sure I’ve ever seen cases addressing that as a holding, either.

  4. John

    I don’t see how he is seeking the “right to be released.” The illegal sentencing claim is a different animal because the petitioner is seeking the right to be released, albeit at a future date. In this case, the petitioner was not seeking the right to be released either now or in the future. Instead, he was only seeking to have $100 put back in his pocket. I can’t imagine how that type of remedy is ever cognizable is collateral proceedings.

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