New opinions — wiping out a habeas grant and allowing discovery on the fairness of stash-house stings

The Third Circuit issued two precedential opinions yesterday, both reflecting the court’s fundamental centrism.

 

Mathias v. Superintendent — habeas corpus — reversal — Krause

Third Circuit reversals in habeas corpus cases are mighty rare. It happened yesterday, but it was a reversal of a district court order that had granted relief. Discouraging times for habeas petitioners.

The Third Circuit held that the district court erred in granting relief based on counsel’s failure to object to a faulty jury instruction involving accomplice liability. The court held that the state court’s ruling that the petitioner did not suffer prejudice was not an unreasonable application of clearly established law because two pertinent Supreme Court rulings were in tension. The court also rejected a related due process claim.

The court also held that the time-limit for cross-appealing is not jurisdictional and is waiveable under a standard set out in the opinion. It further held (as local rule 22.1(d) already provided) that petitioners need a certificate of appealability to cross-appeal, splitting with the Seventh Circuit.

Joining Krause were Fisher and Melloy CA8 by designation. Arguing counsel were Maria Pulzetti of the EDPA federal defender for the petitioner and Jennifer Andress of the Philadelphia DA’s office for the state.

 

US v. Washington — criminal — partial affirmance — Fuentes

This appeal arose out of a stash house reverse sting. A what? The majority opinion explains:

Developed by the ATF in the 1980s to combat a rise in professional robbery crews targeting stash houses, reverse sting operations have grown increasingly controversial over the years, even as they have grown safer and more refined. For one, they empower law enforcement to craft offenses out of whole cloth, often corresponding to statutory offense thresholds. Here, the entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Washington [the defendant], contributing to a total sentence of 264 months in prison—far more than even the ringleader of the conspiracy received. For another, and as Washington claimed on multiple occasions before the District Court—and now again on appeal—people of color are allegedly swept up in the stings in disproportionate numbers.

The panel majority rejected the defendant’s argument that applying the mandatory-minimum sentence violated due process. Judge McKee dissented on this point, arguing that applying the minimums based on fictional drug amounts conjured by law enformcement was unfair, irrational, and not intended by Congress.

The panel unanimously remanded to allow the defendant to pursue discovery in support of a selective-enforcement claim, joining the Seventh Circuit to apply a lower standard than that applicable to selective prosecution claims.

Joining Fuentes was Cowen; McKee dissented in part. Arguing counsel were Mark Greenberg for the defendant and Eric Henson for the government.

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