Crime and Prisoner Law News
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 amountâ€¦"] 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 precedentâ€”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.