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Thursday, February 07, 2013

Ind. Decisions - 7th Circuit decides four Indiana cases today

In Bernard Hawkins v. U.S. (ND Ind., Moody), a 27-page, 2-1 opinion, Judge Posner writes:

This appeal from the denial of a motion under 28 U.S.C. § 2255 to set aside the sentence in a federal criminal case presents the question whether an error in calculating the applicable guidelines sentencing range can be corrected in a postconviction proceeding, now that the guidelines are merely advisory rather than, as they formerly were, mandatory. * * *

Hawkins was sentenced nine years ago. He has served almost three-quarters of the sentence that he now challenges as illegal. Yet it is “illegal” (his word, but not the right word) in the sense not that it must be nullified, but only that, were he correct in calling it a miscarriage of justice, it would have to be reconsidered. If we ordered resentencing, the judge could reimpose the identical sentence. The defendant’s criminal record would justify the judge’s doing that. Indeed we’re surprised that the appearance in the case), on the ground that the “99-page complaint defies understanding, rendering it unintelligible and subject to dismissal on that basis” given the requirement of Fed. R. Civ. P. 8(a)(2) that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The judge granted leave to file an amended complaint and when the plaintiff failed to do so dismissed the suit with prejudice, precipitating this appeal. top of the guidelines range for a violent assault with a weapon by a hardened criminal on two federal officers, inflicting bodily injury, is only 21 or perhaps 30 months, a quarter or less of the statutory maximum. It would be no surprise if a sentencing judge, asked to choose between 21 (or 30) and 151 months, chose the latter.

The judgment denying the section 2255 motion filed by the defendant is AFFIRMED.

[Judge Rovner's dissent starts at p. 12 and begins] Last year this court reviewed a remarkably similar case but reached the opposite result. The majority’s rationale for a different result here is illusory and for this reason I respectfully dissent.

In U.S. v. Ronald Love (ND Ind., Van Bokkelen), an 18-page opinion, Judge Kanne writes:

A jury convicted Ronald Love of one count of distributing crack cocaine and one count of conspiring to distribute crack cocaine. He appealed, challenging his conviction and sentence on various grounds. For the reasons that follow, we affirm his conviction, vacate his sentence, and remand for resentencing.

In U.S. v. Adolfo Wren and Anthony Motion (ND Ind., Lozano and Moody), a 7-page opinion, Chief Judge Easterbrook writes:

After Congress reduced from 100:1 to 18:1 the ratio between crack and powder cocaine for purposes of statutory minimum and maximum sentences, see Dorsey v. United States, 132 S. Ct. 2321 (2012), the Sentencing Commission made corresponding changes to the Guideline ranges for crack. Amendment 750 makes the changes; Amendment 759 authorizes retroactive application. Adolfo Wren and Anthony Moton asked the district court to cut their sentences. The applications went to different judges; both said no. * * *

Only one decision we have found deals with the situation in which Wren and Moton found themselves—an original Guideline range above the statutory floor, a sentence below that floor because of substantial assistance to the prosecutor, and a retroactive change to the Guidelines that (apart from §5G1.1) permits a reduction in the sentence. United States v. Liberse, 688 F.3d 1198 (11th Cir. 2012), holds that in these circumstances the district court may grant a motion under §3582(c)(2) without resetting the Guideline range at the statutory minimum. We agree with that conclusion, for the reasons we have given.

The Sentencing Commission may want to take a close look at the way §1B1.10(b)(1) works when the original sentencing range is at a presumptive statutory minimum. It is difficult to see why prisoners in that situation who received a substantial-assistance or safety-valve sentence should be excluded from a retroactive Guideline reduction, while prisoners whose original ranges were just slightly above the statutory floor are eligible for the benefit of the retroactive change. That is how the Guidelines work as currently written, however. Wren and Moton are entitled to seek relief under §3582(c)(2) as the Guidelines stand, and we remand so that the district judges may exercise the discretion they possess. VACATED AND REMANDED

In Kadamovas v. Stevens, et al (SD Ind., Lawrence), a 7-page opinion, Judge Posner writes:
The plaintiff, an inmate of a federal prison, filed a Bivens suit against seven named members of the prison’s staff plus several “John Does” (unnamed defendants—how many is unclear), complaining of varied mistreatment amounting to cruel and unusual punishment and in one respect to infringement of religious liberty. The district judge dismissed the complaint before an answer or other responsive pleading was filed (no defendants have as yet made an appearance in the case), on the ground that the “99-page complaint defies understanding, rendering it unintelligible and subject to dismissal on that basis” given the requirement of Fed. R. Civ. P. 8(a)(2) that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The judge granted leave to file an amended complaint and when the plaintiff failed to do so dismissed the suit with prejudice, precipitating this appeal. * * *

Since a plaintiff must now show plausibility, complaints are likely to be longer—and legitimately so—than before Twombly and Iqbal. And anyway long before those decisions judges and lawyers had abandoned any effort to keep complaints in federal cases short and plain. Typically complaints are long and complicated. One-hundred page complaints that survive a motion to dismiss are not rarities. The Forms Appendix to the civil rules, with its beautifully brief model complaints, is a fossil remnant of the era of reform that produced the civil rules in 1938. Three quarters of a century later a 28- page complaint pleading seven distinct wrongs is not excessively long. District judges could do more to require that complaints be cut down to size, but it is not apparent what more would be necessary in this case.

Unintelligibility is distinct from length, and often unrelated to it. A one-sentence complaint could be unintelligible. Far from being unintelligible, the complaint in this case, which the plaintiff says he wrote with the assistance of another prisoner (the plaintiff is Lithuanian and claims to be illiterate in English), is not only entirely intelligible; it is clear. * * *

In short the complaint does not violate any principle of federal pleading. The judgment dismissing it for “unintelligibility” must be reversed. But we deny as premature the plaintiff’s further claims that he should have the assistance of counsel in this litigation and that the case should be reassigned to another district judge on the ground that Judge Lawrence is prejudiced against the plaintiff. There has been no showing of prejudice. And until the defendants respond to the complaint, the plaintiff’s need for assistance of counsel (a need asserted for the first time in this appeal) cannot be gauged. * * *

REVERSED AND REMANDED.

Posted by Marcia Oddi on February 7, 2013 10:46 AM
Posted to Ind. (7th Cir.) Decisions