NEWSLETTER June 25, 2021

NEWSLETTER June 25, 2021

Welcome to the weekly edition of my newsletter. Please note that this email address ([email protected]) is only for the newsletter; if you are interested in hiring my law firm, please use [email protected] (prisoner emails accepted).

This same newsletter can be viewed by your folks on our blog, and they can sign up for email alerts when a newsletter is posted, by going to


[-] A Success Story

I’m proud to announce the grant of compassionate release to Eddie Cox, a longtime friend and client of ours, who was serving a virtual life sentence in federal prison. Eddie’s case caught the attention of the courts when Brandon convinced a federal court in Illinois, where Eddie was incarcerated, to grant savings clause relief and vacate his life sentence under the ACCA in 2017. Unfortunately, Eddie’s sentencing court in Missouri resentenced him to over 80 years in prison and left him with what amounted to a life sentence, despite a new Guidelines range of just 14 to 18 years. Just last week, however, the court granted Eddie’s compassionate release motion.

Now 87, Eddie was known as the only white man to hold a leadership position in the Black Mafia in Kansas City back in the 1970s. Called “Cokey Joe” and “Shotgun Joe” on the street, in prison he became known as “The Legend” by becoming the best jailhouse lawyer in the country. Now, after serving 32 years in prison, Eddie will serve as our firm’s symbol of hope: Never give up.

[-] More on the Savings Clause

There have been an abundance of questions on the savings clause lately in light of the Supreme Court’s Borden decision. As most have figured out, Borden’s narrowing of the ACCA was much like Begay’s narrowing of the ACCA in 2008, and Bailey’s narrowing of the sec 924(c) statute with a firearm connected to a drug offense or crime of violence, in 1995. Both of those cases helped to define the contours of the savings clause and there is ample case law on the courts granting such relief to prisoners. A study of those savings clause decisions will do much in the way of determining the steps toward relief under Borden. Another resource on the savings clause is the recent book by Dale Chappell and Brandon Sample, WinningCites: Habeas Corpus for Federal Prisoners. The following is adapted from a chapter in that book on the savings clause.

Federal prisoners must use section 2255 to challenge their criminal judgments, instead of traditional habeas corpus. The Supreme Court has explained that Congress changed the remedy for federal prisoners from habeas corpus under 28 U.S.C. sec 2241 to the new sec 2255, which took the load off the courts in regions with the most federal prisons. Now, under sec 2255, federal prisoners would file their “habeas” challenges under sec 2255 in their sentencing courts.

When sec 2255 was first drafted by Congress prior to its adoption in 1948, the only mention for the purpose of the savings clause under the statute was this: “It will be noted that there is provided a wide discretion in the use of habeas corpus where, for other reasons, the motion remedy seems not practicable.” Today, federal prisoners cannot resort to habeas corpus under sec 2241 “unless it also appears that the [sec 2255] remedy by motion is inadequate or ineffective to test the legality of his detention.” That’s the text of sec 2255(e), known as the savings clause. However, the term “inadequate or ineffective” was not defined by Congress, and the Supreme Court has brushed over it, saying that “where the section 2255 procedure is shown to be inadequate or ineffective, the section provides that the habeas corpus remedy shall remain open.”

The savings clause really didn’t matter much until the Antiterrorism and Effective Death Penalty Act barred filing more than one sec 2255 motion. One of the first courts to address sec 2255(e) after the AEDPA was Triestman v. United States, 124 F.3d 361 (2d Cir. 1997). The court there was faced with a prisoner who may have been convicted of a non-existent offense after the Supreme Court’s decision in Bailey narrowed the statute of his conviction. The movant in that case had already used his one shot at sec 2255 relief and Bailey wasn’t a retroactive constitutional decision to allow another motion. What avenue for relief was there for such a prisoner?

Setting out to define the “inadequate or ineffective” language in sec 2255(e), the court said that it “must mean something or Congress would not have enacted it.” It concluded that the savings clause applied to “a set of cases in which the failure to allow for collateral review would raise serious constitutional questions.” As vague as that is, that meaning still applies today. At least the court was able to give some guidance on what Congress may have meant in providing for resort to habeas corpus under sec 2255(e).

While the courts don’t all agree on what would allow relief under the savings clause, they have nearly all agreed on when it may not be used: (1) when sec 2255 relief is still available, and (2) when the AEDPA would bar another sec 2255 motion or the claim was already denied under sec 2255. In other words, it’s not a “do-over” if you mess up your sec 2255 motion or you forgot to raise something when it could have been raised earlier.


It’s always a good idea to have a new lawyer file your appeal and sec 2255 motion. Not only is a fresh view of your case a good way to pick out some good claims, but it helps avoid a conflict with your lawyer when it comes time to file an ineffective assistance of counsel (IAC) claim that would put her in a bad light.

This is exactly what happened to the defendant in United States v. Scurry, 987 F.3d 1144 (D.C. Cir. 2021). Not only did the same lawyer represent the defendant in the criminal proceedings and then on appeal, but she also argued his sec 2255 motion, which got denied. On appeal from that denial, the court pointed out the reason the motion was denied: Because counsel failed to raise a valid IAC claim against herself that would have likely been successful.

The Supreme Court has made clear that in order to attack a guilty plea, a sec 2255 movant “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel” was deficient. Hill v. Lockhart, 474 U.S. 52 (1985). In other words, the only way counsel could have attacked the guilty plea was to attack her own representation of the defendant. But instead she raised a claim that attacked the evidence of the case, saying it “induced” the guilty plea. She never mentioned her own bad advice to plead guilty.

“The record incontrovertibly establishes that the conflict of interest impaired [counsel’s] representation of Scurry in the district court and in this court. [She] brought a challenge to Scurry’s plea that is squarely foreclosed by precedent and omitted a plausible ineffectiveness claim that courts have allowed in precisely this context,” the court concluded. “[Counsel] seemingly made a choice advancing her own interest at the expense of her client’s.”

A new lawyer on the case would have had no problem raising the necessary IAC claim to properly attack the guilty plea. The court therefore remanded to appoint “conflict-free” counsel for the sec 2255 motion.


Your questions for the newsletter are always welcome. This week’s focus is on one topic: Victim restitution.

Q: Can the victims in the child pornography I possessed really go after me for money, even years after my conviction?

A: It’s true that victims of child pornography offenses may file a civil lawsuit against you, under 18 U.S.C. sec 2255, for possessing their images, even if you didn’t take the pictures or videos. However, it’s not an automatic win for the victims and there are defenses that you can raise. That is, of course, if you and your lawyer raise the right challenges.

A recent case provides a good example of someone raising the right challenges. In Amy v. Curtis, 2021 U.S. Dist. LEXIS 71361 (N.D. Cal. Apr. 13, 2021), 15 child pornography victims (“plaintiffs”) filed a civil lawsuit for damages against a defendant who pled guilty to possessing child pornography, years after the conviction, saying that he possessed some of their images. Of the many defenses raised by the defendant, the crucial challenge came down to whether he actually possessed any of the plaintiffs’ pictures.

The plaintiffs’ argument was two-fold: (1) that the defendant pled guilty to possessing child pornography, so he admitted to having their pictures, and (2) that the images were named similarly to ones known to be part of a series of the plaintiffs’ images, so he must have had their pictures. The court rejected the idea that the defendant’s guilty plea meant he knew he actually possessed the images of the plaintiffs. A “general admission” to possessing child pornography was not enough to show that the defendant knew he possessed their images, the court said.

The second prong was more damaging to the plaintiffs. The court said that it “struggled” to find any evidence of the victims in the material the defendant possessed. Even after ordering the plaintiffs to provide a chart detailing the images that would be found on the defendant’s computer, the judge could not find those images when she looked at the evidence.

“To be clear, in the absence of a declaration or deposition testimony from the person who conducted the forensic examination of the defendant’s computer … that each of the images relied on by plaintiffs, rather than just the series by which they are known to be included in the past, none of the plaintiffs establish that defendant possessed [child pornography] depicting them,” the court concluded, denying the plaintiffs’ motion for summary judgment in their favor.

That’s all for this week. Our best regards!

Brandon Sample, Esq.
PO Box 250
Rutland, VT 05702
802-444-HELP (4357)
802-799-9590 (Fax)
[email protected] (retention inquiries)
[email protected] (newsletter)
Websites: :: (blog) :: :: :: (please tell your folks to “like”)

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

Recommended for you

Newsletter July 2nd, 2021

NEWSLETTER July 2, 2021 Welcome to the weekly edition of our newsletter. VIEWS ON THE LAW [-] Borden and 924(c) Whenever the Supreme Court invalidates part of a criminal statute, the question comes up about whether the Court’s reasoning could affect similar statutes and whether this opens the door for relief. The Court held in…

Read More about Newsletter July 2nd, 2021

Amendment 782 Motion Reconsideration

Reinaldo Rivera moved for 18 U.S.C. § 3582(c)(2) relief based on Amendment 782 to the Guidelines, commonly known as “drugs minus 2.” The district court granted the motion and reduced his sentence to 420 months from LIFE. But in doing so, the district court believed Rivera’s mandatory minimum was 30 years for his CCE conviction.…

Read More about Amendment 782 Motion Reconsideration

Drug Treatment And Vocational Training Improper Sentencing Considerations

Christopher Thornton moved for a downward variance at sentencing arguing, among other things, that “in-prison treatment during the proposed thirty-eight months would help mitigate any potential risk he posed to the community.” The district court denied the motion, but in doing so said that Thornton had “mental-health issues, and he needs drug treatment” and that…

Read More about Drug Treatment And Vocational Training Improper Sentencing Considerations