Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.

The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury from rendering multiple constitutionally sound convictions,” the Third Circuit reasons, “the state court was not unreasonable in sustaining those convictions based on the sufficiency of the trial evidence” — or at least not “so unreasonable as to put it ‘beyond any possibility for fairminded disagreement,’” the opinion elsewhere states, quoting Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015).

Note: a defendant had more success last week on a double jeopardy challenge to conviction on multiple firearms counts under Virgin Islands law in United States v. Hodge, No. 15-2621. At the same time, Hodge rejected a variety of additional double jeopardy challenges, including one to multiple mandatory minimums under 18 U.S.C. § 924(c) where the defendant committed multiple crimes of violence during the same criminal episode.

In Wilkerson, the Court also renders several procedural rulings, holding that the defendant’s claim on direct appeal that Pennsylvania’s merger doctrine barred imposition of sentence on both counts sufficed to exhaust his federal double jeopardy claim; that the 14-day deadline for notice of a cross appeal in a federal civil case is not jurisdictional; and that the original, pro se habeas petition’s failure to state a subsequently raised Apprendi challenge rendered this claim untimely because it did not “relate back” to the defendant’s double jeopardy claim.

Court Opens Door for Long-Timers Serving Mandatory Guidelines Sentences

In In re Hoffner, –F.3d–, 2017 WL 3908880, the Court today holds that persons sentenced in the bad ol’ days of the mandatory Guidelines may proceed on challenges under 28 U.S.C. § 2255 to guideline enhancements resting on the same language held unconstitutionally vague in the Supreme Court's landmark decision in Johnson v. United States, 135 S. Ct. 2551 (2015). The Circuit thus limits the sweep of Beckles v. United States, 137 S. Ct. 886, where the high court held earlier this year that Johnson’s constitutional rule, invalidating a 15-year mandatory minimum provided by statute, has no application where a defendant was sentenced pursuant to a higher range under the advisory Guidelines system that came to be in 2005. Today’s green light is of profound significance to many, albeit far from all, defendants sentenced under the “career offender” guideline, which commonly doubles and can even triple the sentencing range.

Formally speaking, the Court rules that Hoffner, a federal prisoner seeking leave to file a second or successive motion under § 2255, had made a "prima facie" showing that the applicable pre-filing requirements were satisfied for claims that Johnson rendered sentences under the mandatory Guidelines unconstitutional inasmuch as predicated on the "residual clause" found at U.S.S.G. § 4B1.2 from 1989 onward (until revised last year by the Sentencing Commission pursuant to Johnson). That is, a prisoner may go forward on a second or successive § 2255 motion where his sentence was enhanced based on a prior conviction for an offense that – in the language held unconstitutionally vague in Johnson – "otherwise involves conduct that presents a serious potential risk of physical injury to another." The prima facie showing entitles Hoffner and many similarly situated prisoners to pursue relief despite the usual bar on successive motions. Those motions will now be resolved in the first instance in the district courts, with the issue likely to return to the Third Circuit in the future.

Congratulations to Lisa Freeland and her colleagues in the Defender’s office in the Western District of Pennsylvania on emerging victorious from the house of horrors that is today’s ‘retroactivity’ doctrine.