Crime and Prisoner Law News
Application of Alleyne [just five more months to figure it out and file] What suggestions do you have?
by George Hook on 01/24/14
A Special September 1995 Grand Jury Indictment, docketed 5/20/97 in the US District Court for the Northern District of Illinois, charged "Terry Young, aka 'T-Fly,' 'T,' and 'Head,'" with conspiring with 11 others to possess and to distribute unspecified quantities of cocaine, cocaine base, and heroin in violation of Title 21, United States Code, Section 841(a)(1) [possession/distribution], 21 USC 846 [conspiracy] and 18 USC 2 [principal responsibility] without designating any quantity other than "approximately one kilogram of a mixture containing cocaine" on 10/31/96. The Government presented no evidence of quantity because, as District Judge Lindberg instructed the jurors, quantity was not for them to determine beyond "a measurable amount." [His instruction was actually more lenient than the statute which proscribes as to each drug a mixture or substance containing a detectable amount…"] Terry and the others were found guilty as charged and instructed. Working within the statutory range of ten years to life, the Judge then sentenced him to life in prison based on his own assessment of quantity and the lesser standard of proof applicable to sentence, "more likely than not," rather than to conviction's "beyond a reasonable doubt." Based on the latter, the maximum should have been 16 months, based on the drug conviction, at most 41 months based on the money laundering charge [which requires an interstate commercial effect to be a federal offense], alleging that Young bought a house in home town Chicago with drug proceeds [???], maybe a combined maximum of 51 months. You can read all the details of Young's valiant and persistent struggle to limit his incarceration to the correct time, already served at least six times over while the wheels of injustice ground slowly in my Marking Time, pp. 218-239,247,253,423,466,508, 532,541,595, 645, 731. All the 6th Amendment arguments about elements having to be determined by the jury, as interpreted through Jones, Apprendi, Blakely, and Booker had been made by Young to no avail. Young (and many others, NO DOUBT) are serving life sentences where no jury made any determination about the drug quantities that imposed that on them!
Young appealed his sentence (several
times) to the Sinister Seventh, which said it was sufficient that the jury "woulda if they coulda"
found him guilty of conspiring to, and distributing all the drugs the
Government presented at sentencing, but not at trial and therefore confirmed
what I called a virtual verdict, since it was not the verdict the jury actually
rendered, but rather the verdict Judge Rovner thought they would have rendered
had they been given evidence of drug quantity. Young filed habeas corpus petitions pursuant
to 28 USC 2255 and 2241. The AEDPA precludes another 2255 (but not a 2241)
without petition to the court (disputable whether district or appellate).
The AEDPA requires that the issue be Constitutional. Young's
Constitutional issues had been ignored by the courts.
This last
Supreme Court Term came Alleyne--another chance for Young [who
stands for all serving
life sentences where no jury made any determination about the drug quantities
that imposed life imprisonment on them]? Alleyne held
that the jury must decide as elements those factors that dictate a mandatory
minimum sentence, just as Apprendi had mandatory maximum sentences,
and thus reversing Harris, which had held only maximums
mattered.
Clearly, Alleyne is based on Constitutional grant of jury trial.
However, the Alleyne interpretation
overrules the opposite Harris
interpretation. So Young's fate under Alleyne
will depend on whether it is given retroactive effect. That
determination is made based on principals enunciated in Teague v. Lewis, 289 US 288 (1989)
Analyzing how Alleyne can benefit retroactively
continues. Since the lower courts will not act without the consent of the
appellate courts due to AEDPA and since the Circuit Courts of Appeals have
already dissed Alleyne on the basis
of non-retroactivity, the best bet may be to go directly to the Supreme Court,
which, of course, also has habeas jurisdiction and makes the determination of
retroactivity [except where the overruled case is merely Court of Appeals
precedent—Bryant v. Warden (11th
Cir. 12/2013)]. Any such petition will probably wind up back in the district
court that was the sentencing court, but at least such an initial filing will
have given the Supreme Court the opportunity to weigh in on retroactivity, as
to which I have some ideas that might persuade the Supreme Court to grant
retroactivity, at least in special circumstances in a specific case.
Also, despite mouthings that pro se
petitions are given special leeway, representation by counsel seems better in
retrospect as represented cases are the ones among the too few that get
overturned.
