2244(b)(1) Limitations Don’t Apply to Successive 2255 Petitions

In re: Graham: In 2015 Graham was convicted of, among other things, possession of a firearm in connection with a crime of violence, an attempted Hobbs Act Robbery. In the wake of the Supreme Court’s opinion in Johnson, Graham has tried numerous ways to get relief under 28 U.S.C. 2255, arguing that attempted Hobbs Act robbery is no longer a crime of violence. In 2020, he filed a petition seeking permission from the Fourth Circuit to file a second or successive 2255 motion, which was held in abeyance while the court and Supreme Court concluded (in other cases) that attempted Hobbs Act robbery was not a crime of violence.

Ultimately, the Government agreed with Graham that he was entitled to file a second or successive petition, particularly because 28 U.S.C. 2244(b)(1) did not bar him from seeking relief. That provision requires dismissal of any “claim presented in a second or successive . . . application under section 2254 that was presented in a prior application.” Circuit courts are split as to whether that limitation only applies to state prisoners seeking relief under 2254 or also applies to federal prisoners proceeding under 2255. The court sided with the minority of circuits that have held that the restriction is limited to 2254 proceedings. Thus it did not matter that Graham had tried to raise this same issue in prior 2255 proceedings. The court also agreed with the parties that Graham met the standard for being able to file  second or successive petition.

Congrats to the Defender office in Maryland on the win!

Evidence that Defendant and Minor to Whom He Sent Allegedly Obscene Letter Was Admissible

US v. Miller: Miller was incarcerated for state charges when he sent a sexually-themed letter to his sister, who was 14 years old. As a result, he was charged with transferring obscene matter to a minor. Prior to trial, Miller indicated that the only issue for the jury would be whether the letter was actually obscene and offered to stipulate to all other necessary facts, including that Miller knew he sent the letter to a minor. Over the Government’s objection, the district court held that any evidence of Miller’s relationship with the minor should be excluded under Rules 404(b) and 403 of the Rules of Evidence.

On the Government’s interlocutory appeal, the Fourth Circuit reversed the district court, finding that it had plainly abused its discretion in excluding the evidence. The court noted that generally the Government cannot be forced to stipulate to facts at trial and is entitled to present its case with “narrative integrity.” With that background, the court concluded that the evidence that Miller and the recipient of the letter was relevant both to the elements of Miller’s knowledge that she was a minor (more particularly how he knew that) and to the issue of whether the letter was obscene. While the analysis of obscenity is limited to the work in question itself, the court concluded that in “the specific circumstances of this case . . . the ‘whole’ necessarily includes Miller’s relationship to the recipient.” The court also concluded that the evidence was not more prejudicial than probative and was admissible under Rule 403.

CP Convictions, Sentence, Affirmed After Numerous Challenges

US v. Ebert: In 2016, Ebert’s then adult daughter, HH, reported to law enforcement in Ohio that her father had been taking sexually suggestive and explicit photos of her over a period of time that included while they were living in North Carolina. As a result of the ensuing investigation, law enforcement in North Carolina obtained a warrant to search Ebert’s home there and found “numerous photos of HH taken over several years in various stages of undress,” as well as several videos made after HH turned 18 where Ebert can be heard “off camera directing HH to make certain poses and expressions.” Ebert was charged with transporting a minor across state lines to engage in sexual activity, sexual exploitation of a minor, and possession of child pornography. After the district denied Ebert’s motion to suppress the evidence found at his home a jury convicted him of the latter two charges. The district court imposed a 300-month sentence.

On appeal, the Fourth Circuit affirmed the convictions and sentence, turning away three challenges raised by Ebert. First, Ebert argued that there was insufficient probable cause to support the warrant to search his home because it was based on HH’s allegations of activity that was five-to-eight year earlier. The court noted that traditional issues with staleness do not apply in child pornography situations because the evidence itself is not consumable (like drugs) and tends to be retained over time. Therefore, there was probable cause to support the warrant. At any rate, the district court was correct that the Leon good-faith exception applied (a conclusion Ebert did not challenge on appeal). Second, Ebert argued that the videos taken after HH turned 18, as well as her testimony about them and the testimony of another minor with whom Ebert was sexually suggestive, should have been excluded under either Rule 404(b) or Rule 403 of the Rules of Evidence. The court disagreed, finding that the videos and HH’s testimony were intrinsic to the charged offenses, the other minor’s testimony was relevant 404(b) testimony, and none of it was more prejudicial than probative under Rule 403. Finally, Ebert argued that the district court clearly erred by imposing a Guideline enhancement for engaging in a pattern of conduct with a minor. The court concluded that based on HH’s testimony (which the jury credited) there was no clear error.