Bench Memos

Law & the Courts

‘Actually Innocent of His Sentence’?

I confess that I’m not up to speed on all the ways that various judges work to evade limitations on granting habeas relief. But sometimes ugly and ungrammatical locutions give the game away.

In a divided Ninth Circuit decision today in Allen v. Ives, Judge William Fletcher, writing for the majority, addresses Allen’s claim that he is (in Fletcher’s summary) “‘actually innocent’ of his sentence as a career offender.” Elsewhere in his opinion, he speaks of being “actually innocent of the enhancement.” He tries to recast both concepts as being “actually innocent of being a career offender.”

But Allen isn’t making the factual claim that he didn’t commit the state-law crime that served as the predicate crime for career offender status. He is instead making the legal argument that the crime for which he was convicted doesn’t qualify as a predicate crime. Fletcher evidently can’t entertain that claim without butchering both the law and the English language.

In her dissent, Judge Callahan faults the majority for an “expansion of actual innocence jurisdiction [that] is inconsistent with both Supreme Court and Ninth Circuit precedent.” She also expresses alarm that the majority “opens the proverbial floodgate for habeas petitions under the [actual-innocence] escape hatch.”

Mark this one for en banc rehearing.

Most Popular

Elections

Trump in Trouble

President Trump was disappointed. Bad weather on Wednesday forced a delay in SpaceX's planned launch of the Dragon spacecraft, robbing the president of a prized photo opportunity. He plans to attend the next launch, scheduled for May 30 at 3:22 p.m. EDT, but the spoiled visit to Florida punctuated another week of ... Read More
Elections

Trump in Trouble

President Trump was disappointed. Bad weather on Wednesday forced a delay in SpaceX's planned launch of the Dragon spacecraft, robbing the president of a prized photo opportunity. He plans to attend the next launch, scheduled for May 30 at 3:22 p.m. EDT, but the spoiled visit to Florida punctuated another week of ... Read More
U.S.

First, Restore Order

Doing evil in the service of a just cause does not change either side of the moral equation: Evil remains evil, and the just cause remains just — neither consideration cancels out the other or transmutes it. With riots and violence convulsing American cities after the horrifying death of George Floyd at the ... Read More
U.S.

First, Restore Order

Doing evil in the service of a just cause does not change either side of the moral equation: Evil remains evil, and the just cause remains just — neither consideration cancels out the other or transmutes it. With riots and violence convulsing American cities after the horrifying death of George Floyd at the ... Read More
Politics & Policy

Is It Revolution?

I knew I was tempting fate a week ago when I said that the coming nomination of Joe Biden and the COVID-19 pandemic had put America’s politics on chill during this election year. Little did I know that days later we’d be making analogies to 1968. The killing of George Floyd by a Minneapolis policeman moved ... Read More
Politics & Policy

Is It Revolution?

I knew I was tempting fate a week ago when I said that the coming nomination of Joe Biden and the COVID-19 pandemic had put America’s politics on chill during this election year. Little did I know that days later we’d be making analogies to 1968. The killing of George Floyd by a Minneapolis policeman moved ... Read More
PC Culture

For Looters, Looting Is Fun

One important thing to realize about looting is that it's usually enjoyable for those engaged in it, who exult in the momentary suspension of any rules. Just a couple of examples from the last couple of days (language ... Read More
PC Culture

For Looters, Looting Is Fun

One important thing to realize about looting is that it's usually enjoyable for those engaged in it, who exult in the momentary suspension of any rules. Just a couple of examples from the last couple of days (language ... Read More