By Max Anthony

On September 26, 2022, thousands of prisoners across the state of Alabama launched a labor strike in response to the “deteriorating conditions” and “pervasive violence” inside state prisons.[1]  In fact, conditions have deteriorated to the point that multiple homicides and drug overdoses occur on a weekly basis resulting in a “new normal.”[2]  This new normal caught the eye of the Department of Justice (“DOJ”), who filed a lawsuit against the Alabama Department of Corrections (“ADOC”) in 2020.[3]  The lawsuit alleges, inter alia, that ADOC has failed “to provide safe conditions of confinement in violation of the Constitution.”[4]

Specifically, locks in ADOC’s prions are “broken or defective,” surveillance cameras do not function, and dormitories are “open and overcrowded” requiring prisoners to use “shared showering and toileting facilities.”[5]  Additionally, plumbing does not work, causing routine “flooding.”[6]  These unsafe conditions create “heighten[ed] tensions,” increasing violence.[7]  For example, from 2018 to 2019, at least twenty-four prisoners were killed, leading to ADOC having “the highest homicide rate in the nation for a state prison system.”[8]  From 2019 to 2020, “at least 825 prisoner-on-prisoner assaults” occurred with one prisoner being “stabbed repeatedly in the face” and another hospitalized after being stabbed in the stomach twenty-six times.[9]

Even the correctional officers contribute to the violence.[10]  For instance, four correctional officers were indicted in 2020 after “using excessive force on a prisoner and for obstructing justice by filing false reports to conceal their misconduct.”[11]  Others have beaten “handcuffed prisoners . . . by striking them repeatedly with a baton.”[12]  All of this has been caused by ADOC’s failure to provide “adequate” educational and work opportunities and its failure to “implement effective classification and housing policies.”[13]

DOJ, however, is challenging these conditions of confinement as violative of the “Eighth and Fourteenth Amendments” of the United States Constitution.[14]  The question remains then whether the prisoners can challenge the conditions of their confinement through a writ of habeas corpus. 

The Supreme Court has explicitly left open the question of whether prisoners may challenge the conditions of their confinement through a writ of habeas corpus.[15]  Recognizing this unanswered question, the Supreme Court, in Ziglar v. Abbasi,[16] explained in dicta that habeas would provide a faster and more direct route to relief, “if necessity required its use.”[17]  Although the Court declined to determine the scope or availability of a habeas remedy because it was not at issue, it did explain that a successful habeas petition would require “officials to place [prisoners] in less-restrictive conditions immediately.”[18]

Further, in Preiser v. Rodriguez,[19] the Supreme Court determined that when a prisoner is put “under additional and unconstitutional restraints during his lawful custody” habeas corpus may be available to remove the restraints “making the custody illegal.”[20]  This is because habeas may be “available to challenge such prison conditions.”[21]  The Court also clarified that if a prisoner challenges both the conditions of their confinement and the fact or length of the confinement, the “latter claim . . . is cognizable only in federal habeas corpus.”[22]  However, the Court declined to define the contours of habeas because plaintiffs properly filed under § 1983.[23]  In his dissent, Justice Brennan concluded that some instances remain where a claim may “properly be brought in habeas corpus, even though it is somehow sufficiently distant from the ‘core of habeas corpus.’”[24]

Indeed, earlier Supreme Court cases established that prisoners may use habeas corpus to challenge the conditions of their confinement.  For example, in Johnson v. Avery,[25] a state prisoner sought relief from his confinement in a maximum security unit through a writ of habeas corpus.[26]  The prisoner was challenging a prison regulation that barred prisoners from assisting others in preparing writs of habeas corpus.[27]  The Court held that habeas corpus could be used to challenge unconstitutional conditions of confinement when prison regulations conflict with “federal constitutional or statutory rights.”[28]  In fact, the Court emphasized the “fundamental importance of the writ of habeas corpus in our constitutional scheme.”[29]

Circuit courts, however, are split on the question of whether prisoners can challenge the conditions of their confinement through a writ of habeas corpus.[30]  For example, in unpublished opinions, the Fourth Circuit has held that conditions of confinement claims are not cognizable in habeas proceedings.[31]  All of these cases cite Preiser to hold that a conditions of confinement claim is only appropriate in a § 1983 claim, not through a habeas petition. However, the Preiser court simply concluded a § 1983 action is a “proper remedy” for a state prisoner challenging only the conditions of their prison life, “but not the fact or length of his custody.”[32]  But, in the very next paragraph, Justice Stewart clearly stated, “[t]his is not to say that habeas corpus may not also be available to challenge such prison conditions.”[33]

As Justice Brennan made clear in his dissent, the court’s holding simply means that if a prisoner is challenging the fact or duration of their confinement then a habeas petition is their only option, but a conditions of confinement claim can be brought either through a habeas petition or a civil rights claim.[34]

Using this analysis, the Court of Appeals for the District of Columbia Circuit, in Aamer v. Obama,[35] held a prisoner may challenge the conditions of their confinement “in a federal habeas corpus petition.”[36]  The court specifically stated that Preiser did not “hold that the converse is also true—that is, that any claim challenging something apart from the fact or duration of confinement may not be raised in habeas.”[37]  Instead, the D.C. Circuit concluded the “weight of the reasoned precedent in the federal Courts of Appeal” compels the conclusion that conditions of confinement claims may be brought through a habeas petition.[38]  This view is further supported by the First Circuit, in United States v. DeLeon,[39] which concluded “[i]f the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available.”[40]

In sum, the writ of habeas corpus should encompass a challenge to a prisoner’s conditions of confinement.  Including these claims within the scope of habeas will allow it to “to achieve its grand purpose—the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.”[41]  In doing so, prisoners will be freed from the torturous conditions that are stripping them of their basic human rights.

[1] Keri Blakinger, Alabama Said Prison Strike Was ‘Under Control.’ Footage Shows System in Deadly Disarray., Marshall Project (Oct. 6, 2022),

[2] Id.

[3] Complaint at 1, United States v. Alabama, 2020 WL 7246531 (No. 2:20-cv-01971-JHE) (Dec. 9, 2020).

[4] Id. at 1–2.

[5] Id. at 18.

[6] Id. at 19.

[7] Id.

[8] Id. at 6–7.

[9] Id. at 7–8.

[10] Id. at 14–15.

[11] Id.

[12] Id. at 15.

[13] Id. at 12.

[14] Id. at 20.

[15]  See Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement.”).

[16] 137 S. Ct. 1853 (2017).

[17] Id. at 1863.

[18] Id. at 1862–63.

[19] 411 U.S. 475 (1973).

[20] Id. at 499.

[21] Id.

[22] Id. n.14.

[23] Id. at 500. 

[24] Id. at 506.

[25] 393 U.S. 483 (1969).

[26] Id. at 484.

[27] Id.

[28] Id. at 486.

[29] Id. at 485; see also Wilwording v. Swenson, 404 U.S. 249 (1971) (concluding state prisoners have a cognizable claim in habeas corpus to challenge their living conditions and disciplinary measures in prison); In re Bonner, 151 U.S. 242, 259 (1894) (“[The writ of habeas corpus] was intended as a protection of the citizen from encroachment upon his liberty from any source”) (emphasis added).

[30] See, e.g., Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (holding state prisoners can only use a habeas petition if their claims lie at the core of habeas corpus); Miller v. United States, 564 F.3d 103, 105 (1st Cir. 1977) (recognizing federal prisoners may challenge the conditions of their confinement through a habeas petition under 28 U.S.C. § 2241).

[31] See, e.g., Wilborn v. Mansukhani, 795 F. Appx. 157, 164 (4th Cir. 2019) (concluding prisoner’s challenge to the conditions of his confinement do not “fall within the scope of habeas corpus”); Rodriguez v. Ratledge, 715 F. Appx. 261, 266 (4th Cir. 2017) (explaining plaintiff’s deprivation of good conduct is cognizable under § 2241, but his challenge to the conditions of his confinement is not).

[32] Preiser, 411 U.S. at 499.

[33] Id.

[34] See id. at 505 (“Yet even though a prisoner may challenge the conditions of his confinement by petition for writ of habeas corpus, he is not precluded by today’s opinion from raising the same or similar claim…by suit under the Ku Klux Klan Act, provided he attacks only the conditions of his confinement and not its fact or duration”).

[35] 742 F.3d. 1023 (2014).

[36] Id. at 306.

[37] Id. at 300.

[38] Id. at 306.

[39] 444 F.3d 41 (1st Cir. 2006).

[40] Id. at 59.

[41] Jones v. Cunningham, 371 U.S. 236, 243 (1963).

By: Sophia Pappalardo & Kenya Parrish

United States v. James Michael Farrell

In this criminal case, Appellant was convicted after a jury trial for ten offenses of money laundering conspiracy, substantive money laundering, and obstruction of justice. Appellant was prosecuted for his role in an elaborate multi-state marijuana trafficking organization. On appeal, Appellant contested several rulings made by the district court regarding evidence admissibility and sufficiency, and jury instructions. The Fourth Circuit rejected Appellant’s contentions of error and affirmed the judgment of the district court. 

United States v. Joshua Wayne Riley

In this criminal case, Appellant was convicted on federal drug-related charges in 2013. Appellant was released from prison in 2016 and began serving his five-year supervised release term. The district court determined Appellant violated the conditions of his supervised release and sentenced Appellant to twelve months’ imprisonment. Appellant appealed, arguing that the court erred in finding Appellant’s statements sufficient to establish the violation of his supervised release. The Fourth Circuit affirmed the judgment of the district court. 

Thomas Franklin Bowling v. Director, VA Dept. of Corrections

In this habeus corpuscase, Appellant was sentenced to life with the possibility of parole when he was seventeen years old and was first eligible for parole in April 2005. Thereafter, Appellant was annually denied parole by the Virginia Parole Board. Appellant alleged that the Parole Board’s repeated denials violated Appellant’s Eighth and Fourteenth Amendment rights. The district court granted the Appellee’s motion to dismiss. Regarding the Eighth Amendment claim, the district court held that juvenile-specific Eighth Amendment protections did not apply to Appellant because he was sentenced to life with the possibility of parole. Additionally, the district court held that the Parole Board’s procedures satisfied the Fourteenth Amendment’s procedural due process requirements. The Fourth Circuit affirmed the judgment of the district court.

By Ali Fenno

On November 23, 2016, the Fourth Circuit issued a published opinion in the criminal case of Rodriguez v. Bush.  In Rodriguez, the Fourth Circuit addressed whether the failure of Nicanor Perez Rodriguez’s (“Rodriguez”) trial counsel, James Ervin (“Ervin”), to object to a trial judge’s rejection of Rodriguez’s plea agreement constituted “ineffective assistance of counsel” that justified relief under 28 U.S.C. § 2254.  After applying a deferential review standard for ineffective assistance and state-adjudicated § 2254 claims, the Fourth Circuit held that Ervin’s conduct did not constitute “ineffective assistance of counsel” because the alleged omitted objection would have been meritless and thus did not prejudice Rodriguez’s case.  Accordingly, the Fourth Circuit affirmed the trial court’s denial of Rodriguez’s § 2254 petition.

Factual and Procedural Background

In 2006, a South Carolina trial court convicted Rodriguez on multiple counts of drug trafficking and sentenced him to 45 years’ imprisonment.  He had accepted a plea agreement on the first day of trial that recommended a 20-year sentence, but the plea agreement had been rejected by the trial judge without explanation the very same day.

In 2010, Rodriguez filed a motion for post-conviction relief (the “PCR Motion”), alleging that the rejection of the plea agreement constituted a violation of his federal due process rights and that Ervin provided ineffective assistance of counsel by failing to object to the rejection and thus preserve the issue for appeal.  The state court denied the PCR Motion, holding that Rodriguez failed to show that (1) Ervin should have objected to the plea deal, and (2) Ervin’s failure to object prejudiced Ervin’s case.  The Supreme Court of South Carolina affirmed.

Rodriguez then filed this § 2554 petition in the United States District Court for the District of South Carolina.  The district court denied the petition, and Rodriguez appealed.

Issues on Appeal and Standard of Review

In deciding whether Rodriguez’s § 2254 petition should have been granted, the Fourth Circuit first identified a de novo standard of review for § 2554 issues.  But it then noted that § 2254(d) only permits a federal court to grant a § 2254 petition previously adjudicated by a state court on the merits when the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The court then reasoned that because the trial court addressed whether Ervin’s conduct constituted “ineffective assistance of counsel” to deny Rodriguez’s PCR Motion, the § 2254 petition could only be granted if the Fourth Circuit determined that the state court unreasonably applied the “ineffective assistance of counsel” standard.  The Fourth Circuit identified the correct standard as a two-pronged test articulated in Strickland v. Washington, which enables a party to prevail on an ineffective assistance of counsel claim if he or she demonstrates that (1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced the defense.”  Accordingly, the single issue on this appeal was whether any reasonable argument could be made that Ervin satisfied the Strickland test.

Failure to Meet Strickland’s Prejudice Prong

To address this issue, the Fourth Circuit first noted that pursuant to Harrington v. Richter, review of the Strickland test is highly deferential to the state court, and “doubly” deferential when applied in conjunction with § 2554.  The court then looked at the prejudice prong of the Strickland test, reasoning that it did not need to first address the issue of a deficiency because it would be so easy to dispose of the ineffectiveness claim on prejudice grounds.  It articulated that to demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  The court further defined a reasonable probability as “a probability sufficient to undermine confidence in the outcome,” and noted that, pursuant to Lockhart v. Fretwell, a petitioner will not show prejudice if the “omitted objection” is “wholly meritless under current governing law.”

In applying these rules to the facts of Rodriguez, the court concluded that the Ervin’s “omitted objection” to the rejection of the plea agreement was “wholly meritless.”  To come to this conclusion, it noted that in Missouri v. Frye, Santobello v. New York, and Lafler v. Cooper the Supreme Court clearly articulated that there is no federal due process right that a plea agreement be accepted by a judge.  Thus, the Fourth Circuit determined that any objection made by Ervin asserting that the plea agreement’s rejection violated Rodriguez’s federal due process rights would have been entirely without merit.  Accordingly, Rodriguez was not prejudiced by Ervin’s failure to make a meritless claim, and Ervin’s omission did not amount to an “ineffective assistance of counsel” justifying relief under § 2254.


Because Ervin’s omitted objection was wholly meritless, the Fourth Circuit determined that it was reasonable for the district court to conclude that Rodriguez did not demonstrate the requisite prejudice for an ineffective assistance of counsel claim.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it denied Rodriguez’s request for relief under 28 U.S.C. §2254.

By Kelsey Hyde

Today, the Fourth Circuit issued a published opinion, In re William Robert Gray, Jr., deciding on a motion for authorization to file a second or successive application for a writ of habeas corpus. The movant (“Gray”) had sought the Court’s approval to file a second petition under 28 U.S.C. § 2254, as would be necessary under 28 U.S.C. §2244(b), but the Fourth Circuit held this action was unnecessary based on finding that Gray’s petition was in fact a “first challenge” to a new or intervening judgment. By way of this ruling, the Fourth Circuit joined the Third, Sixth, Ninth, and Eleventh Circuit Courts in their treatment of habeas petitions filed after a new, intervening judgment as not second or successive within the meaning of §2244(b).

Factual Background & Procedural History of Gray’s Claims

            In 1993, Gray was convicted in North Carolina of first-degree murder and sentenced to death. Gray then filed a 28 U.S.C. §2254 petition—an application for a writ of habeas corpus for a person in custody based on the judgement of a State court—in federal district court, which was dismissed. However, the Fourth Circuit reversed in part, finding that Gray’s counsel had been ineffective at his sentencing and ordering the district court to grant the writ of habeas corpus, unless the State were to afford Gary a new sentencing hearing within a reasonable period of time. When resentencing still had not occurred after five years, Gray filed his own pro se motions challenging both this delay and his underlying conviction, which were all denied by the district court and affirmed by the Fourth Circuit. Then, the State decided it would not seek the death penalty and finally resentenced Gray to life in prison. Gray then filed this motion under 28 U.S.C. § 2244(b) for approval to file a second or successive § 2254 petition regarding his underlying criminal conviction.

Gray’s Contentions & Issue Presented to the Fourth Circuit

            Ultimately, Gray contended that the Fourth Circuit’s approval under § 2244(b) was not necessary because his resentencing acted as a new, intervening judgment, and therefore his petition was not “second or successive.” The issue for the Court’s consideration was whether, following a successful habeas petition regarding sentencing, Gray could then challenge his underlying conviction without triggering the “second or successive” requirements, and therefore not requiring court of appeals approval.

“Second and Successive Petitions” for Habeas Relief

            Per 28 U.S.C. §2244 and the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a petitioner incarcerated based on a State judgment cannot bring “second or successive” motions for habeas relief, and such claims shall be dismissed unless authorized by the appropriate court of appeals. §2244(b)(1), (3). However, authorization to file may be found unnecessary if the court of appeals determines that the petition in question is not in fact second or successive. Thus, a court must first determine whether a petition is second or successive, and only then if it is found to be second or successive should the court review the claim for satisfaction of the §2244(b) requirements. Magwood v. Patterson, 561 U.S. 320, 334-35 (2010). The Supreme Court in Magwood also emphasized that this second or successive distinction must be made with respect to the particular judgment being challenged, and resentencing a defendant is an “intervening judgment” such that a subsequent petition regarding this new sentencing would not be second or successive. Id. at 339, 342. However, the Court in Magwood only decided the issue in regards to another petition following a new sentencing judgment, and did not have occasion to determine whether this result also applied when the subsequent petition went to the defendant’s underlying conviction and adjudication of guilt, rather than sentencing. Id. at 342. The Third, Sixth, Seventh, Ninth, and Eleventh Circuits all had occasion to decide this precise issue, and all but one (the Seventh Circuit) determined that where a defendant received a new judgment as a result of a habeas petition relating to resentencing, a subsequent petition relating to their underlying conviction would not be considered “second-in-time” such that §2244(b) applied and required authorization. The issue presented in Gray’s claim had yet to be addressed by the Fourth Circuit.

Petition Not Considered “Second or Successive” Where Defendant Received Intervening Judgment on Sentencing But Now Seeks to Challenge Conviction

            The Fourth Circuit sided with the majority of the other circuits mentioned, and found that a movant in Gray’s situation—filing a habeas petition relating to underlying conviction after a successful habeas petition relating to sentencing—would not be submitting a second-in-time petition such that § 2244(b) would apply. The Court believed that, in the Magwood ruling, the Supreme Court made clear that an intervening judgment wholly resets the “habeas counter” at zero. Additionally, the Court also found this conclusion fitting in light of other Fourth Circuit precedent. See In re Wright, 826 F.3d 774 (4th Cir. 2016) (finding §2244(b)’s “second and successive” requirements did apply where prisoner’s first §2254 petition was dismissed, there was no intervening judgment, and the subsequent petition was challenging the same judgment yet merely setting forth an argument that had not been included in his original.) Moreover, the Court found this interpretation of Magwood to be consistent with the AEDPA’s goal of limiting the ability to make these successive petitions to these narrowly-defined circumstances, and further emphasized that this ruling in no way inhibits the other procedural safeguards that effectively bar excessive and redundant claims.

Fourth Circuit Orders District Court to Hear Petition as First Challenge, Not Second-in-Time

Because Gray’s §2254 petition was not second or successive, the Fourth Circuit found that review under §2244(b) was unnecessary, and thus directed the district court to hear the petition as a first challenge to this new judgment.

By John Van Swearingen

On Wednesday, November 23, 2016, the Fourth Circuit issued a published opinion in the civil case Rodriguez v. Bush. This matter was a habeas corpus petition brought by an offender sentenced to forty-five years in prison for drug trafficking. The United States District Court for the District of South Carolina denied Rodriguez’s petition under 28 U.S.C. § 2254 (2012), holding that Rodriguez’s claim for ineffective assistance of counsel failed to establish that his defense was prejudiced by his counsel’s performance. Rodriguez’s claim was rooted in his counsel’s failure to object to state trial judge’s denial of Rodriguez’s accepted plea offer. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Rodriguez’s petition on the basis that there is no federal or constitutional right to have a plea bargain accepted by a trial court, and therefore, his counsel’s failure to object could not establish prejudice to Rodriguez’s defense.

Facts and Procedural History

In 2009, on the day Rodriguez’s trial, the prosecutor offered Rodriguez and his co-defendants various plea bargains. The offer to Rodriguez was for a recommended sentence of 20 years, and Rodriguez’s co-defendants were made similar offers. The offers to the co-defendants were accepted by the court.

However, when Rodriguez’s counsel presented the plea offer to the trial judge, the judge rejected the offer, stating that “he was not going to accept the plea and that he was ready to try a case this week.” While Rodriguez’s counsel did attempt to convince the judge to accept the plea deal, he did not object on the record to preserve the rejection for appeal.

The state court denied Rodriguez’s motion for post-conviction relief, stating that his counsel’s failure to object did not prejudice Rodriguez’s defense and the trial court’s denial of the plea offer did not violate Rodriguez’s due process rights. Rodriguez then appealed to the South Carolina Supreme Court, but certiorari was denied. Rodriguez then filed a petition in federal court under § 2254.

The Ineffective Assistance of Counsel Claim

Strickland v. Washington, 466 U.S. 668, 687 (1984), governs ineffective assistance of counsel claims. Under Strickland, to prove ineffective assistance of counsel, Rodriguez must show (1) “that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.”

Despite being a two-pronged test, a reviewing court is free to examine the prejudice prong first, as it is dispositive to the claim. Rodriguez was not prejudiced by his counsel’s failure to object to the rejection of the plea deal, because a defendant cannot be prejudiced by a claim that has no merit under governing law. Therefore, Rodriguez’s ineffective assistance of counsel claim fails.

There is No Due Process Claim to Have a Plea Deal Accepted by the Court

In Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012), the Supreme Court held that there is no federal right to have a judge accept a plea deal. The Court further clarified this point in Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012), explicitly stating that there can be no due process claim even where “a plea deal is accepted by the defendant but rejected by the judge.” Even further, there is no constitutional claim under the same facts. Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992).

Therefore, the governing law clearly states that Rodriguez, nor any other similarly-situated defendant, claims a right to have an accepted plea offer honored by a presiding judge. Rodriguez based his due process claim on the premise that such a right existed. Since the claim has no support under governing law, and because this same claim forms the basis of his ineffective assistance of counsel claim, both of his claims on appeal fail.


The Fourth Circuit affirmed the district court’s denial of Rodriguez’s petition under § 2254. Both the ineffective assistance of counsel and due process claims were based on the premise that a defendant has a right to have a plea deal accepted by a presiding judge. Because no such right exists, Rodriguez’s claims were properly denied.

By Kelsey Mellan

On November 21, 2016, the Fourth Circuit issued a published opinion in Bennett v. Stirling, a prisoner death penalty appeal involving a prosecutor’s racially charged remarks throughout a sentencing hearing. Petitioner Johnny Bennett (“Bennett”) challenged the imposition of a capital sentence in South Carolina courts. While the Fourth Circuit recognized that courts typically give great deference to death sentence decisions pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this court agreed with the district court that prosecution comments made during Bennett’s sentencing were so racially charged that a fair proceeding was impossible. Therefore, the Fourth Circuit affirmed the district court’s grant of habeas relief.

Facts & Procedural History

In 1995, Bennett, an African-American male, was convicted of murder, kidnapping, armed robbery, and larceny in a South Carolina trial court. A mixed-race jury sentenced Bennett to death for murder. On appeal, the South Carolina Supreme Court upheld the convictions but reversed the death sentence, ordering the trial court to conduct a new sentencing hearing. This sentencing hearing was held in 2000, in front of a panel composed of only white jurors. Before this jury, prosecutor Donald Myers (“Myers”) chose to use racially charged language from the beginning of his opening argument all the way throughout the hearing until the end of his closing statement (as opposed to the racially neutral presentation he had given to the mixed-race jury). He referred to Bennett as “King Kong,” a “caveman,” a “monster,” and a “big old tiger.” Myers also alluded to Bennett’s sexual relationship with a “blonde-headed lady,” informing the jury of Bennett’s interracial relationship with one of the prison guards at the correctional facility where he was housed.

Despite these numerous derogatory remarks, the trial court denied Bennett’s motion for a new trial. The court determined that the labels of “King Kong” and “cave man” did not result in the denial of Bennett’s due process rights and therefore did not warrant a new sentencing hearing. The South Carolina Supreme Court affirmed the death sentence, holding that the derogatory remarks “did not improperly inject racial issues into the trial.” In 2008, Bennett sought post-conviction relief in state court, alleging that one of the jurors in the 2000 panel was racially biased and thus the seating of that juror violated his 6th and 14th Amendment rights to an impartial jury. The state court denied relief on the grounds that the juror was not actually biased at the time of the 2000 hearing, and the South Carolina Supreme Court denied certiorari.

In 2014, Bennett filed the instant petition for federal habeas relief under 28 U.S.C. § 2254 on the grounds of prosecutorial misconduct and juror bias. In Bennett v. Stirling (D.S.C. 2016), the district court granted relief on both grounds, vacated Bennett’s death sentence, and remanded the case to the Lexington County Court of General Sessions for resentencing within 180 days of the order. The district court vacated and remanded because the state court unreasonably determined that Myer’s racially motivated derogatory remarks about Bennett appealed to racial prejudice. This case stemmed from the respondents’ appeal.

AEDPA Deference

 Under § 2254(d), as amended by the AEDPA, a federal court may not grant a state prisoner’s habeas petition unless the state court’s adjudication of the prisoner’s claim was legally or factually unreasonable. Relief is only allowed if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” However, relief can be permitted where the state court’s decision was based on an unreasonable determination of the facts based on the evidence presented in the State court. Therefore, federal courts must give state courts great deference. Section 2254 imposes a substantial hurdle to habeas relief because, as the Supreme Court stated in Jackson v. Virginia, habeas relief is a “guard against extreme malfunctions in…criminal justice systems” rather than ordinary error correction.

The “clearly established Federal law” at issue in this case is from the Supreme Court decision, Darden v. Wainwright. In Darden, the Supreme Court held that a prosecutor’s improper comments offend the Constitution if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Courts must view the questionable comments in the context of the entire record, rather than analyzing the comments in a vacuum. However, the Supreme Court noted in United States v. Young, “the line separating acceptable from improper advocacy is not easily drawn.” While prosecutors retain substantial latitude to present their cases as they see fit, the Constitution condemns racially derogatory prosecutorial arguments. Moreover, because the punishment at issue is a death sentence, the Fourth Circuit could not “avert their eyes from racial prejudice” because of the finality of the punishment.

Prosecutions’ Racially Charged Remarks Constituted Due Process Violation

The Fourth Circuit decided the South Carolina state courts unreasonably determined that the prosecutor’s comments about Bennett throughout the trial were not appeals to racial prejudice and thus, unreasonably concluded that Bennett’s due process rights were not violated. In particular, the prosecutor’s derogatory references to Bennett during his closing arguments – characterizing Bennett as a primitive, sub-human species and a wild animal – were “unmistakably calculated to inflame racial fears” in the jury. Additionally, the Fourth Circuit determined that the state court’s acceptance of the prosecution’s “King Kong” and “caveman” comments was obviously unreasonable. “The prosecutor’s comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution.” While courts must be deferential to prosecutor’s trial strategies, the prosecutor’s specific derogatory statements about Bennett “plugged into potent symbols of racial prejudice, encouraging the jury to fear Bennett or regard him as less human on account of his race.”

In addition to the content of the derogatory remarks, the particular circumstances of the case confirmed that the comments were appeals to racial prejudice rather than neutral descriptions of Bennett’s size or strength. The prosecutor could have easily highlighted Bennett’s size or physical features in a neutral matter. In fact, in the earlier sentencing hearing, the state used cardboard cutouts to convey Bennett’s size in comparison to his victim. However, the prosecutor methodically chose inflammatory phrases to dehumanize Bennett to the all white jury.

The Fourth Circuit further explained that the prosecutor’s statements regarding Bennett’s race violated his due process rights when considering the “procedural distortion wrought by the challenged remarks.” In McCleskey v. Kemp, the Supreme Court emphasized the importance of jurors focusing “their collective judgment on the unique characteristics of a particular criminal defendant.” Here, the Fourth Circuit was firmly convinced that the prosecutor’s closing comments risked “reducing Bennett to his race” and diminished the jury’s ability to objectively determine an appropriate punishment.

Moreover, when looking to the record as a whole, the Fourth Circuit decided there was nothing isolated about the prosecutor’s derogatory references. In Donnelly v. DeChristoforo, the Supreme Court decided that an isolated remark from a prosecutor regarding a habeas petitioner’s race did not violate his due process rights as it “was but one moment in an extended trial.” Here, in contrast, the prosecutor’s misconduct was “pronounced and persistent with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential.” When taken in comparison to the racially-neutral arguments made to the mixed-race jury, it became all the more evident that the prosecutor’s derogatory language was unnecessary and calculated. The Fourth Circuit ultimately held that the motivation behind the prosecutor’s prejudiced comments, coupled with the lack of curative instruction to the jury, warranted habeas relief. The Fourth Circuit concluded its discussion in this case by cautioning: “The criminal justice system must win the trust of all Americans by delivering justice without regard to the race or ethnicity of those who come before it…a proceeding like this one threatens to tear that trust apart.”


Therefore, the Fourth Circuit affirmed the district court’s grant of habeas relief.


By John Van Swearingen

On Wednesday, November 9, 2016, the Fourth Circuit issued a published opinion in the civil case LeBlanc v. Mathena. This matter was a habeas corpus petition brought by a juvenile offender sentenced to life without parole for a non-homicide offense. The District Court of the Eastern District of Virginia had previously concluded that Virginia’s Geriatric Release program, which provides offenders sentenced to life without parole the opportunity to petition for conditional release after the age of sixty, violated the minimum standards of the incorporated Eighth Amendment as held in Graham v. Florida, 560 U.S. 48 (2010). In Graham, the Supreme Court of the United States held that the Eighth Amendment forbids the sentencing of juveniles convicted of non-homicide offenses to life without parole. Juvenile life sentences for non-homicide offenses must provide a meaningful and realistic opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Here, the circuit court affirmed the district court’s ruling, holding that Geriatric Release does not meet the requirements of Graham.

Facts and Procedural History

On January 1, 1995, Virginia enacted Va. Code Ann. § 53.1-165.1 (2015), abolishing parole for felonies convicted after that date. On July 6, 1999, the Petitioner committed the crimes of rape and abduction, and on July 15, 2002, he was convicted and sentenced to two life sentences.

After the Supreme Court decided Graham in 2010, the Petitioner filed a motion in Virginia state court to vacate his sentence of life without parole. In 2011, the state trial court denied Petitioner’s motion based on Angel v. Commonwealth, a contemporaneous Virginia Supreme Court decision holding that Virginia’s Geriatric Release program satisfied the requirements of Graham.

In June of 2012, the Petitioner filed a writ of habeas corpus in the District Court of the Eastern District of Virginia. The district court granted the habeas petition, holding that the Geriatric Release program did not meet the standards established in Graham. The Respondents in this case, the state, timely filed this appeal.

Virginia’s Geriatric Release Program

Virginia’s Geriatric Release program is a two-stage process by which convicted offenders with life sentences can apply for conditional release. Unlike Virginia’s abolished parole doctrine, the Geriatric Release program is not automatic. Offenders must initiate the process with a petition to the Parole Board – and again, they may only do so after their sixtieth birthday.

The first stage of the Geriatric Release process requires the offender’s petition demonstrate a “compelling” reason for the release of the offender. The term “compelling” is not defined in the relevant statute or administrative regulations. The Parole Board is able to deny the petition for Geriatric Release for any reason at this point.

Should the Parole Board permit the petition to go to the second stage, the offender will be provided the opportunity to make oral and written statements to the Parole Board to advocate for his or her release. If at least four out of five members of the Board agree, the offender’s petition for Geriatric Release will be granted.

Again, the process is distinguishable from the old parole system. Geriatric Release cannot be initiated until the offender turns sixty. Virginia’s parole process typically initiated after offenders had served about fifteen years. The Petitioner would likely have been eligible for parole, under the old system, after around twenty years. Under the Geriatric Release program, that length of time is approximately doubled. Further, only three out of five members of the Parole Board had to agree to grant parole. The Geriatric Release program requires one more member of the board for approval.

Standard of Review for Habeas Corpus Petitions

When a habeas petition is filed, the standard of review turns on whether the petition involves a question of law or fact. This case presents a question of law, meaning the standard of review is stated at 28 U.S.C. § 2254(d)(2) (2012). If the court’s decision was an “unreasonable determination” of how the law applies to the facts in this case, then the court’s decision was improper. If the decision was reasonable, it stands.

Habeas petitions in federal district courts must review the case at hand in addition to the most recent state case addressing the issue. In this case, the most recent state case was the Angel decision, which held that the Geriatric Release program met the requirements of Graham. Since the state decision is contrary to the district court’s decision, either Angel or the district court’s decision will be determined unreasonable, and one holding will be affirmed.

The Standard Established in Graham

The holding in Graham was based on the Supreme Court’s conclusion that juveniles are less culpable for crimes than adults. Juvenile brains, the Court noted, are still developing. Because of this, the Court stated, juvenile offenders are less likely to be “irretrievably depraved” than adults. With that in mind, the Court examined the prospect of life without parole for juveniles convicted of non-homicide offenses in the context of the Eighth Amendment.

The Court noted that life without parole is only second to the death penalty in its harshness and ability to deprive convicted persons of hope. Life without parole is, therefore, an ultimate judgment of the irrevocable nature of an offender’s character. Given those points, the Court held that life sentences for juveniles convicted of non-homicide offenses must meet three requirements.

First, the sentence must provide an opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Second, this opportunity must be meaningful and realistic. Third, the state’s parole and release programs at large must account for the lesser culpability of juveniles.

The Geriatric Release Program Does Not Satisfy the Graham Requirements

The Fourth Circuit held that the Virginia Geriatric Release program does not meet any of the three requirements set out in the Graham decision, thus overturning Angel and affirming the district court’s holding.

First, the Geriatric Release program does not require the Parole Board to consider any factors relevant to the juvenile’s maturity or rehabilitation. Additionally, because of the two-stage review process, a petition can be denied at the first stage – before the presentation of oral and written arguments. Also, over 95% of the denials of Geriatric Release petitions were based on the nature of the underlying crimes, which, again, precludes consideration of maturity and rehabilitation. Therefore, the program does not meet the first requirement of Graham.

Second, the circuit court held the extended duration of time compared to parole, coupled with the lack of consideration for juvenile-specific factors, rendered the opportunity provided under the Geriatric Release program neither meaningful nor realistic for juvenile offenders facing life sentences. Therefore, the program does not meet the second requirement of Graham.

Finally, the Geriatric Release program fundamentally contravenes the concerns underlying the Court’s third requirement in Graham. Unlike the abolished parole program, which counted time served regardless of age, the Geriatric Release program requires juveniles serving life sentences to spend a longer percentage of their life incarcerated than an adult serving the same sentence. Essentially, the program ensures that juveniles, though deemed to be less culpable by the Supreme Court, will bear a harsher punishment than adults.


The Fourth Circuit affirmed the district court’s order remanding the Petitioner’s case for resentencing. The Virginia Geriatric Release program permits the denial of offender’s petitions without requiring consideration of demonstrated maturity or rehabilitation. The program, in execution, results in more comparably harsh sentences for juvenile offenders than adult offenders. Therefore, the Geriatric Release program does not meet the requirements of the incorporated Eighth Amendment as enumerated in Graham.

By Ali Fenno

On October 25, 2016, the Fourth Circuit issued a published opinion in the criminal case of Dingle v. Stevenson. In Dingle, the Fourth Circuit addressed whether the Supreme Court’s holding in Roper v. Simmons, which invalidated the use of capital punishment against juvenile offenders, should apply retroactively to undo a guilty plea made by Ronald Donald Dingle (“Dingle”). After examining the scope of the holding in Roper and the nature of plea bargains, the Fourth Circuit held that Roper cannot apply retroactively to undo a guilty plea and affirmed the lower court’s dismissal of Dingle’s petition.

Lower Courts Repeatedly Dismiss Dingle’s Petitions

In 1993 the state of South Carolina (the “State”) charged Dingle with murder, assault and battery with intent to kill, first degree burglary, kidnapping, pointing a firearm, two counts of possession of a weapon during a violent crime, and two counts of possession of a sawed-off shotgun. Because the State intended to pursue the death penalty, Dingle plead guilty in exchange for life imprisonment with the possibility of parole.

When it was later discovered that the consecutive nature of Dingle’s sentences precluded parole, an integral part of the plea bargain, Dingle filed an application for post-conviction relief (“PCR”). The PCR court vacated his sentences and remanded for sentencing consistent with the intent of the plea agreement or for a new trial.

Several years later, a hearing still had not been held, so Dingle filed a motion for a speedy trial. The hearing was then held on July 28, 2005, and Dingle contended that his guilty plea should be withdrawn. He argued that the benefit of his plea bargain, avoiding the death penalty, was removed by the Supreme Court’s recent decision in Roper, which held that it was a violation of the Eighth Amendment for the death penalty to be used against juvenile offenders. The Court of General Sessions disagreed, rejecting Dingle’s request for a new trial and holding that pleas should be evaluated based on the law that existed in 1995. The South Carolina Supreme Court affirmed this decision, finding that Roper did not remove the benefit of the plea bargain.

Dingle again filed an application for PCR in 2009, arguing that Roper retroactively applied to his case and, as such, his guilty plea was involuntary because it was made to avoid cruel and unusual punishment. However, the PCR court found that Dingle’s claim was barred by res judicata. Dingle’s subsequent appeal and third petition were unsuccessful.

Dingle also filed a petition for a writ of habeas corpus under 28 U.S.C. § 2554 in the United States District Court for the District of South Carolina. He raised four claims of error, but the district court dismissed the claims without prejudice.

On September 13, 2013, Dingle filed the instant § 2554 petition. The petition contested Dingle’s conviction on six grounds, but the district court adopted the magistrate judge’s recommendation to deny the petition in its entirety.

Issues on Appeal

The Fourth Circuit granted a certificate of appealability to determine the single issue of whether Roper may be applied retroactively to invalidate Dingle’s guilty plea. Dingle argued that the holding in Roper invalidated his guilty plea because (1) it was a substantive rule so applied retroactively to his case, and (2) if it would be improper for the state to seek the death penalty against him now, then it was also improper in 1995. Thus, his plea was invalid because it was attempt to avoid cruel and unusual punishment. However, the Fourth Circuit disagreed, concluding that (1) plea bargains are outside the scope of the Roper holding, and (2) the nature of plea bargains support upholding their validity.

Plea Bargains Are Outside the Scope of Roper

The Fourth Circuit first concluded that the holding in Roper was never intended to apply to plea bargains. Although the court conceded that Roper was indeed a substantive rule that could be applied retroactively, it found that the scope of the rule was limited to the actual sentence delivered in a case. Because Dingle did not actually receive the death penalty, attempting to apply the holding in Roper to his own case was “compar[ing] apples and oranges.” The court further noted that the Supreme Court had never before allowed “a substantive rule to stretch beyond the proscribed sentence to reopen guilty pleas with a different sentence.”

Future Legal Developments Cannot Invalidate Plea Bargains

The Fourth Circuit next concluded that the holding in Roper could not invalidate Dingle’s guilty plea because plea bargains are “a bet on the future,” whereby defendants accept both the benefits of a lighter sentence and the risks of losing out on future favorable legal developments. A defendant’s remorse at missing out on those favorable legal developments is not enough to rescind an entire bargain.

The court found support for this contention in Brady v. United States, where the Supreme Court held that a defendant who entered into a plea agreement to avoid capital punishment could not later withdraw his plea agreement when subsequent legal developments made him ineligible for the death penalty. The Supreme Court suggested that defendants who are offered plea bargains must weigh the benefits and risks of such bargains, and the fact that they did not anticipate certain legal developments could not “impugn the truth or reliability of [their] plea.” Accordingly, the Fourth Circuit concluded that when Dingle entered his guilty plea, he accepted the trade-off between present benefits and future risks that is “emblematic” of plea bargains, and his inability to anticipate the favorable outcome in Roper could not invalidate his plea.


The Fourth Circuit concluded that (1) Roper, even applied retroactively, could not invalidate Dingle’s plea, and (2) precedent and policy argued against setting aside Dingle’s plea bargain. Accordingly, it affirmed the district court’s dismissal of Dingle’s petition and held that Roper could not be applied retroactively to invalidate Dingle’s guilty plea.


By Eric Jones

On March 16, 2016, the Fourth Circuit issued a published opinion in the civil case Matherly v. Andrews.  Thomas Shane Matherly was appealing the district court’s order granting summary judgment for the government on his petition for a writ of habeas corpus.  The Circuit held that a genuine question of fact remained regarding the precise date and time that Matherly was released from Bureau of Prisons (“BOP”) custody, and remanded to develop the record further.

The Child Pornography Conviction and Prison Sentence

In October 2003, Matherly pled guilty to one count of possession of child pornography, and was ultimately sentenced to spend 47 months in prison.  With “good time” credit, available under 18 U.S.C. § 3624(b), Matherly received up to 54 days per year credited towards his sentence.  With that credit, Matherly was eligible for release on November 23, 2006.  November 23, 2006 was in fact Thanksgiving day, however, and 18 U.S.C. § 3624(a) provides that if “the date for a prisoner’s release falls on a Saturday, a Sunday, or a legal holiday at the place of confinement, the prisoner may be released by the Bureau on the last preceding weekday.”  The BOP thus decided to exercise their discretion, and released Matherly one day early, on November 22, to supervised release.

The Adam Walsh Act

The Adam Walsh Act, 18 U.S.C. § 4248(a), authorizes the civil confinement of “sexually dangerous person[s]” who are “in the custody” of the BOP.  To begin the proceedings, a certification is filed in district court that the individual is a sexually dangerous person, and the inmate’s release is automatically stayed pending a hearing.  A sexually dangerous person is defined as “a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others,” and a person who is “sexually dangerous to others” means “the person suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.”  Upon a showing by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit the inmate to the custody of the Attorney General, either for release to a state civil commitment system or to a federal facility until it is determined that they are no longer sexually dangerous.

The Civil Commitment Proceedings

Matherly, scheduled to be released at 8:00am on November 22, 2006, was in fact released at 9:20am that day.  At 10:08am, the Adam Walsh certificate was filed to stay his release.  During the proceedings, Matherly conceded that he had engaged in child molestation and suffered from a serious mental disorder.  Following an evidentiary hearing, the court found that Matherly would have serious difficulty in refraining from sexually violent conduct or child molestation if released, and ordered that he be committed.

Matherly filed a pro se petition for writ of habeas corpus, arguing that the Adam Walsh Act had been improperly applied retroactively to him because it did not become effective until after his confinement had begun, and additionally argued that he was not “in the custody” of the BOP at the time the certificate was filed.  The district court granted summary judgment for the government, and Matherly timely appealed.  Matherly was appointed counsel on appeal.

The Adam Walsh Act Was Not Retroactively Applied

The Fourth Circuit began by explaining that the Adam Walsh commitment proceedings were civil, not criminal, in nature and were not punishment for prior criminal offenses.  Furthermore, the Circuit held that “Congress sufficiently expressed its intent that the Adam Walsh Act apply to all persons in the BOP’s custody who would pose a current threat to the public if released.”  Because there was nothing in the statute to indicate that Congress intended to create anything other than a civil commitment scheme designed to protect the public from a present threat of harm, there was no retroactive application of it to Matherly.  As the Circuit explained, the Adam Walsh Act merely uses prior acts as evidence to support a finding of mental abnormality or future dangerousness, and does not punish those acts.  Thus, the Act addressed the dangers that could arise post-enactment, whenever a “sexually dangerous person” was released from imprisonment.  For this reason, the Fourth Circuit Affirmed the district court’s grant of summary judgment that the Walsh Act was not applied retroactively to Matherly.

The Record Was Insufficient to Determine Whether Matherly was “In Custody”

As the Fourth Circuit explicated, the term “custody” includes not just physical custody, but also “legal custody.”  Thus, in order for Matherly to be within the custody of the BOP at the time the certification was filed, the BOP would have to have “ultimate legal authority” over his detention.  In the district court, the government argued that Matherly was in their legal custody until November 23, when he was scheduled to be released originally.  Matherly countered that he was actually released on November 22, almost an hour before the certification was filed.  Matherly contended that the BOP no longer had legal custody over him because his release paperwork had been filed and processed.

The Fourth Circuit held that the record was simply too bare to determine whether the BOP had “relinquished ultimate legal authority” over Matherly prior to the filing of the certification, or whether they had merely released him physically from one facility in order to transfer him to another in anticipation of his civil commitment.  Ultimately, the Circuit held that “we believe the better course is to allow the parties an opportunity to better develop the record, and the district court an opportunity to make additional findings and conclusions.”


Because Adam Walsh Act does not apply retroactively but rather applies to involuntarily commit individuals who are currently a danger, the Fourth Circuit held that it was not wrongfully applied retroactively to Matherly and affirmed the district court’s grant of summary judgment.  Because the record was too sparse to determine whether Matherly had been released from the BOP’s legal custody prior to the certification that he was a “sexually dangerous person,” the Circuit remanded for further proceedings to better develop the record.

By Blake Stafford

On February 9, 2016, the Fourth Circuit issued its published opinion in Grueninger v. Dir., Va. Dep’t of Corr., a criminal case reversing the dismissal of a prisoner’s federal habeas petition.  In this case, Eric Adam Grueninger was convicted of sexual abuse and possession of child pornography.  His conviction for sexual abuse rested largely on confessions he made to police in an interview that occurred after he was read his Miranda rights and after he requested an attorney.  Prior to trial, Grueninger’s attorney did not move to suppress this confession under Edwards v. Arizona.  Grueninger argued on state collateral review that this constituted ineffective assistance of counsel under Strickland v. Washington.  After being denied habeas relief by state courts and the federal district court, the Fourth Circuit reversed in part, holding that had Grueninger’s statements been suppressed, there is a reasonable probability that the outcome of the trial would have been different as to the sexual abuse charges.

Facts & Procedural History

Grueninger was arrested in 2009 for sexually abusing his daughter.  During his first interview with a police investigator, Grueninger was read his Miranda rights and responded, “These are felonies, I need an [a]ttorney.”  The investigator stopped questioning immediately.  That same day, police searched his home and found three thumb drives with videos of child pornography.  Three days later, police issued Grueninger a new arrest warrant with additional child pornography charges, and the investigator interviewed Grueninger again after reading him his Miranda rights a second time (and again, with no lawyer present).  This time, Grueninger answered the police investigator’s questions and admitted to, inter alia, performing oral sex on his daughter and ejaculating on her.  Grueninger was indicted by a grand jury for ten counts of sexual abuse charges of varying degrees as well as ten counts of child pornography charges (nine were possession, one was distribution).  A bench trial was held.

Local rules required that a motion to suppress be filed in writing before trial.  Grueninger’s attorney did not file a motion to suppress Grueninger’s confession.  However, on the first day of trial, his attorney did object under Edwards v. Arizona.  The trial court overruled the objection due to its belatedness.  The prosecutor then elicited testimony from the police investigator regarding Grueninger’s inculpatory statements.  At the close of trial, the court noted the importance of the investigator’s testimony in its decision, which was a conviction on all counts.  Grueninger was sentenced to a total term of 235 years, with all but 88 suspended.

Grueninger appealed his convictions, arguing that the evidence was insufficient to sustain them.  The Court of Appeals of Virginia affirmed, and the Supreme Court of Virginia denied Grueninger’s petition for appeal.  Grueninger then filed a pro se habeas petition in state court before the same judge who had presided over his trial.  He argued that the admission of his uncounseled confession was unconstitutional under Edwards v. Arizona and that his attorney’s failure to move to suppress the confession on those grounds warranted ineffective assistance of counsel.  The state court denied his relief, holding that his statements to the investigator had been “voluntary” rather than the product of “interrogation,” which is required for Edwards suppression.  Grueninger appealed to the Supreme Court of Virginia, which summarily found that there was no reversible error.  Grueninger filed a federal habeas petition under 28 U.S.C. § 2254 arguing the same ineffective assistance of counsel error.  The district court agreed with the state court and held that an Edwards motion to suppress would have been “baseless”; thus, the resulting exclusion of Grueninger’s confession would not have led to a different outcome at trial.  Grueninger appealed to the Fourth Circuit.

Preliminary Issue: Review of State Supreme Court’s Summary Order

As a preliminary matter, the Court addressed the appropriate standard for evaluating the state court’s “reasoned decision-making” for the purposes of federal habeas review under § 2254(d).  As noted above, the state supreme court summarily found there was no reversible error.  The Commonwealth argued that Harrington v. Richter applied, which held that a state supreme court judgment may be disturbed under § 2254(d) only if there is “no reasonable basis for the state court to deny relief,” a standard that requires the petitioner to show that any hypothetical ground for state supreme court denial would be objectively unreasonable.  However, the Fourth Circuit distinguished Richter, which involved a habeas petition that was presented directly to the state supreme court as an original petition and then denied by that court in a summary order.  Thus, the Court held that Richter is limited to cases where a state court’s decision is unaccompanied by an explanation by a lower court.  Instead, Ylst v. Nunnemaker is the appropriate framework, which requires a federal habeas court to “look through” the unexplained affirmance to examine the “last reasoned decision” on the claim, assuming that the summary appellate decision rests on the same ground.


There are two primary analyses that governed this case—the substantive suppression of Grueninger’s uncounseled confession and the corresponding ineffective assistance of counsel claim.

Suppression of Uncounseled Confessions.  In Edwards v. Arizona, the Supreme Court held that once a suspect invokes his right to counsel under Miranda, he is “not subject to further interrogation” by the police, unless the suspect himself initiates renewed communication with the police.  If the police do interrogate a suspect after he asserts his right to counsel, any statements elicited are per se inadmissible, even if the suspect is again advised of his Miranda rights.  For an Edwards violation, a petitioner must show (1) that he clearly and “unambiguously” invoked his right to counsel and (2) that the police subsequently “interrogated” him.

In this case, the Fourth Circuit found that Grueninger’s claim satisfied both elements.  First, he clearly and “unambiguously” invoked his right to counsel.  Grueninger, in response to his first Miranda warning, said, “These are felonies, I need an [a]ttorney.”  While merely mentioning an attorney is not enough, Grueninger’s statement was unequivocal and unambiguous such that a “reasonable police officer in the circumstances” would understand the statement to be a request for an attorney.  This is bolstered by the fact that the police investigator did in fact stop asking questions in the interview in which Grueninger requested an attorney.

Second, Grueninger was subsequently “interrogated” by the police.  The state court denied relief on this ground, holding that Grueninger’s statements to the investigator had been “voluntary” rather than the product of “interrogation.”  The Fourth Circuit disagreed with—and the Commonwealth did not defend—this determination, finding that it was objectively unreasonable under § 2254(d).  The asking of questions about the substance of a case constitutes “interrogation” for Edwards purposes.  Here, when Grueninger was visited in prison, he was questioned by the police.  The Court found no room for doubt on this point.  These questions constituted “express questioning” that squarely qualified as an “interrogation.”

Ineffective Assistance of Counsel.  The framework in Strickland v. Washington governs claims of ineffective assistance of counsel.  There are two prongs to this framework.  First, the petitioner must show that his lawyer rendered constitutionally deficient performance, meaning that “the identified acts or omissions were outside the wide range of professionally competent assistance.”  For a failure to file a motion to suppress, it is enough to call into question counsel’s performance that an unfiled motion would have had “some substance.”  Second, the petitioner must show prejudice resulting from counsel’s deficiencies, which requires “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  For a failure to file a motion to suppress, a petitioner must show both (1) that the motion was meritorious and likely would have been granted, and (2) a reasonable probability that granting the motion would have affected the outcome of his trial.

In this case, both prongs were satisfied for the sexual abuse charges.  First, the court held that the attorney’s performance was deficient, as an Edwards motion to suppress would have had “some substance” as described above.  Second, the court held that this failure produced sufficient prejudice to warrant ineffective assistance of counsel.  For the same reasons as the deficiency prong, the court held that the motion would have been meritorious and likely granted but for counsel’s deficient performance.  To complete the prejudice showing, the court evaluated whether there was a “reasonable probability that granting the motion would have affected the outcome of the trial.”  For the sexual abuse charges, the court found that the evidence independent of Grueninger’s confession was not so overwhelming such that there was no reasonable probability of a different outcome.  None of the other witnesses could testify directly as to Grueninger’s sexual abuse, and the confession relayed by the police investigator weighed heavily in the court’s analysis.  However, for the child pornography charges, the court concluded that Grueninger’s confession was of limited relevance in his conviction.


With respect to his sexual abuse convictions, the Fourth Circuit reversed the district court, holding that Grueninger demonstrated ineffective assistance of counsel under both the deficient performance and prejudice prong.  Thus, the case was remanded with instructions to issue a writ of habeas corpus as to the sexual abuse charges unless Grueninger was to be prosecuted in a new trial on those counts without utilizing the confession.

With respect to his child pornography charges, the Fourth Circuit affirmed the district court, holding that Grueninger failed to show a reasonable probability of a different outcome as required by the prejudice prong.

By Cate Berenato

On December 2, 2015, in the published case Fontanez v. O’Brien, the Fourth Circuit reversed and remanded the Northern District of West Virginia’s decision to dismiss a federal inmate’s habeas corpus petition. The Fourth Circuit held that Jeremy Fontanez properly brought his claim under 28 U.S.C. § 2241.

The issue in this case was whether Mr. Fontanez’s claim was cognizable under 28 U.S.C. § 2241.

In 2004, Mr. Fontanez was convicted for his involvement in several armed robberies, and “the sentencing court imposed restitution in the amount of $ 27, 972.61. The sentencing court’s instructions read: Mr. Fontanez “shall make restitution payments from any wages he may earn in prison in accordance with the Inmate Financial Responsibility Program.” The Bureau of Prisons (“BOP”) runs the Inmate Financial Responsibility Program (“IFRP”), which allows prisoners to make periodic payments from their inmate accounts toward restitution obligations. While voluntary, prisoners with financial obligations who do not participate in the program become ineligible for various privileges. In 2013, Mr. Fontanez signed an Inmate Financial plan but requested to be released from it a year later.

Mandatory Victims Restitution Act and 28 U.S.C. § 2241

Mr. Fontanez argued that the requirement that he participate in the IFRP violated the Mandatory Victims Restitution Act of 1996, which requires a district court to “specify in [a] restitution order the manner in which, and the schedule according to which, the restitution is to be paid.” Mr. Fontanez argued that the sentencing court unlawfully delegated the BOP with the task of setting his restitution payment schedule.

A federal prisoner must challenge the execution of a sentence under 28 U.S.C. § 2241, and he or she must challenge the sentence itself under 28 U.S.C. § 2255. Mr. Fontanez brought his claim under § 2241 because he was challenging the execution of his sentence, and he asked the district court to enjoin the BOP from requiring him to make payments through the IFRP.

The Northern District of West Virginia dismissed Fontanez’s claim because it held that he challenged the sentence “as imposed” rather than “as executed” and thus improperly brought his claim under § 2241.

Mr. Fontanez Properly Brought His Claim Under § 28 U.S.C. § 2241

The Fourth Circuit held that Mr. Fontanez properly brought his claim under § 2241 because he sought relief from the way that the BOP, rather than the sentencing court, executed his sentence. Because prisoners must challenge the execution of sentences under § 2241, Mr. Fontanez properly brought his claim under that section.




By Blake Stafford

On July 31, 2015, the Fourth Circuit issued its published opinion in the criminal case United States v. Surratt.  In this case, Raymond Surratt filed a second petition for writ of habeas corpus under 28 U.S.C. § 2241 to reduce his life sentence for his conviction of conspiracy to distribute cocaine.  As a federal prisoner, Surratt could not challenge his sentence under § 2241 unless the challenge fell within the scope of 28 U.S.C. § 2255(e)—the “savings clause”; otherwise, the district court was deprived of jurisdiction.  The district court concluded that his petition did not meet the “savings clause” requirements under § 2255(e) and thus denied his petition.  The Fourth Circuit affirmed, holding that Surratt’s § 2241 petition did not fall within the scope of § 2255(e); thus, the district court appropriately determined that it lacked jurisdiction to consider the petition.

Facts & Procedural Background

In 2005, Surratt was sentenced to life imprisonment after pleading guilty to conspiracy to distribute cocaine.  Prior to this conviction, he had been convicted four times for felony possession of cocaine.  The Government sought a sentencing enhancement given Surratt’s prior convictions under 21 U.S.C. § 841(b)(1)(A), which provided a mandatory term of life imprisonment without release if the defendant had two or more prior convictions that constituted “felony drug offenses.”  At the time of his sentencing, the Fourth Circuit precedent on this sentencing enhancement scheme was set forth in United States v. Harp, in which the Fourth Circuit held that a North Carolina drug conviction qualified as a “felony drug offense” if “the maximum aggravated sentence that the state court could have imposed for that crime upon the defendant with the worst possible criminal history exceeded one year.”  Under Harp, Surratt’s prior convictions constituted felony drug offenses, and he thus faced a mandatory life sentence.  Surratt’s conviction and sentence were affirmed on appeal, and his motion to vacate his conviction under § 2255, based on ineffective counsel, was denied.

Several years later, the Fourth Circuit decided United States v. Simmons, which overruled Harp.  Had Surratt been sentenced after Simmons, he would have faced a lower mandatory minimum sentence than the mandatory life term that he actually received.  In light of this ruling, Surratt filed a successive § 2255 motion to the Fourth Circuit as well as a § 2241 petition for a writ of habeas corpus to the district court, both premised on Simmons-based relief.  The Fourth Circuit denied his successive § 2255 motion, as it fell outside the statutorily enumerated exceptions that permit that type of motion under § 2255(h).  Because he was a federal prisoner, Surratt’s § 2241 petition in the district court had to satisfy § 2255(e)—also called the “savings clause”—in order for the district court to have jurisdiction to consider the § 2241 petition.  The district court concluded that § 2255(e) did not, in this case, confer jurisdiction to consider Surratt’s claim in a § 2241 petition, so it denied the petition.  Surratt appealed.

Statutory Landscape

In the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress circumscribed the ability of federal prisoners to request post-conviction relief.  Normally, § 2255 provides the ordinary means for a federal prisoner to challenge his conviction or sentence.  But, in AEDPA, Congress limited the jurisdiction of federal courts to hear second or successive requests under § 2255.  Specifically, under § 2255(h), courts may hear second or successive motions only if they pertain to (1) newly discovered evidence that clearly and convincingly establishes that no reasonable factfinder would have found the movant guilty of the offense, or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

If a federal prisoner cannot meet these two requirements under § 2255(h), he may file a traditional petition for writ of habeas corpus under § 2241 by way of the § 2255(e) savings clause.  However, under § 2255(e), a prisoner may file a § 2241 habeas petition only if the collateral relief typically available under § 2255 is “inadequate or ineffective to test the legality of his detention.”  If a prisoner brings a § 2241 petition that does not fall within the scope of this savings clause, then the district court must dismiss for lack of jurisdiction.

Court’s Application: Savings Clause Not Applicable

The Court began by noting that § 2255 was deemed inadequate or ineffective in only one prior instance—In re Jones.  In Jones, the court opened a narrow gateway to § 2241 relief for certain prisoners found actually innocent of their offenses of conviction, allowing relief only where the acts for which the defendant was convicted are not a crime.  Thus, the Court has since focused on this aspect of Jones—actual innocence of a criminal act—when characterizing the decision.  Here, Surratt is not innocent of anything, because Simmons did not decriminalize anything.  Thus, the Court held that he was just as guilty today as he was in 2005, and Jones did not apply.

Next, the Court evaluated the text of § 2255(e)—”inadequate or ineffective to test the legality of [Surratt’s] detention”—to determine whether circumstances outside of the Jones “innocence” test permit § 2241 relief.  The Court identified four basic characteristics of the text of § 2255(e) that ultimately left Surratt with no remedy:

  • First, the Court found that the word “test” indicated that the clause is concerned with process, not with substance; thus, Surratt had the opportunity to “test” the legality of his detention in his first § 2255 motion.  While Simmons had not been decided at the time Surratt filed his first § 2255 motion, courts do not permit petitioners special favors because the petitioners misjudged their claims as futile and chose not to present them in the first instance.  Thus, what matters is the ability to make the request—not the ability to win it—and Surratt had the ability to make the claim in the first motion.
  • Second, the Court found that the phrase “inadequacy and ineffectiveness” indicates that § 2255(e) preserves only the chance to request relief, not the ultimate and absolute right to obtain it.  Thus, the chance to argue a claim is the relevant criterion for adequacy and effectiveness, not any particular disposition of the claim.  Here, Surratt never suggested that the § 2255(e) mechanism denied him a chance to make his present argument.
  • Third, the Court found that the savings clause tests the “legality” of the relevant detention.  Courts generally have not recognized an “illegal” detention—one that would trigger the savings clause—where the defendant challenges a sentence within the correct statutory maximum.  Here, Surratt never received a sentence above the statutory maximum; while a life term is no longer mandatory, it is still the statutory maximum even after Simmons.
  • Fourth, the clause’s reference to “detention” speaks to physical restraint of a person’s liberty by the executive branch.  Thus, a § 2241 attack on “detention” through § 2255(e) should entail a challenge to (1) the right and authority of the executive to keep the individual in custody, or (2) the manner in which the executive executes the detention.  Here, Surratt’s petition does not attack any detention by the executive branch.

In addition to these four textual arguments, the Court noted that this narrower reading of the savings clause preserves one of the most important purposes of AEDPA sought to serve: finality.

Finally, the Court rejected potential constitutional issues brought by Surratt, finding that their narrow interpretation did not violate the Suspension Clause, Due Process Clause, Equal Protection Clause, or separation-of-powers principles.

District Court Affirmed

In sum, the Court found that the text and purposes of § 2255(e) indicated that Surratt’s § 2241 claim was not the type covered by the savings clause.  Thus, the Fourth Circuit affirmed the district court’s determination that it lacked jurisdiction over his petition.


In a passionate dissent, Judge Gregory noted that Surratt will die in prison only because the district court thought that this sentence was required to do so pursuant to a mandatory minimum.  Given the complete deprivation of liberty, this sentence constitutes an extraordinary miscarriage of justice of a constitutional magnitude, which should be sufficient to invoke the savings clause.