Monday, July 12th, 2021

The Second Circuit holds that the concurrent sentence doctrine applies when a defendant collaterally challenges the legality of a conviction, under 28 U.S.C. § 2255, and declines to review the § 2255 appeal. Kassir v. United States, No. 19-1477, __F.3d__ (2d Cir. July 9, 2021) (C.J.J. Jacobs, Nardini).

The Circuit applies the “discretionary” concurrent sentence doctrine because the petitioner’s 2255 motion attacked only a single count of conviction, that resulted in a 20-year sentence that is concurrent to “two terms of life in prison” on counts unchallenged. The Circuit said it was exercising its discretion “to decline” to review Mr.  Kassir’s 2255 appeal (challenging the validity of a conviction) because “[e]ven  if  his challenge were successful, our decision would  not shorten the time Kassir must remain in custody because he remains subject to two concurrent life sentences[.]” Op. at 2-3.

The Circuit holds, however, that  if, in the future, the petitioner is able to challenge his two life sentences, he may renew his 2255 challenge to the concurrent 20-year sentence. Op at 25-27.

I. The Circuit avoids deciding (i) whether Dimaya and Davis established a new rule of constitutional law, retroactive to cases on collateral review; or (ii) whether petitioner’s conviction under 18 U.S.C. § 842(p)(2)(A) was  predicated on a “crime of violence” under 18 U.S.C. § 16(b)..

“Kassir is currently serving multiple sentences, including two terms of life in prison, for various terrorism-related crimes.” Op. at 2. The sentences were imposed in 2009.

About 10 years after sentencing, in 2019, he filed a 2255 motion, arguing that one of his convictions “—for   distributing information related to explosives, destructive devices, and  weapons of mass destruction in violation of 18 U.S.C. § 842(p)(2)(A), which led to a  20-year  prison  term—should be vacated under the Supreme Court’s 2018 decision in Sessions v. Dimaya [138 S.Ct. 1204 (2018)].” Op. at 2-3.

Dimaya held that the “residual clause of 18 U.S.C. § 16(b), the federal criminal code’s  definition of ‘crime of violence,’ was …  impermissibly vague,” relying on the 2015 decision in Johnson (135 S.Ct. 2551) on ACCA’s unconstitutionally vague residual clause. Op. at 5. The conviction that Kassir’s 2255 motion challenged – 18 U.S.C. § 842(p) —  incorporates the definition of “crime of violence” of § 16(b). Op at 6 n.10; see 18 U.S.C. § 842(p) (“[i]t shall be unlawful for any person to teach or demonstrate the making or use of an explosive . . . or to distribute . . . information pertaining to . . . the manufacture or use of an  explosive . . . with the intent that the . . . information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence.”) (emphasis added).

Mr. Kassir filed his 2255 motion within one year of Dimaya (in March 2019). And in June 2019, the Supreme Court decided another void-for-vagueness case, United States v.  Davis, 139 S.Ct. 2319 2324 (2019), which struck the residual clause of 18 U.S.C. § 924(c) — another similarly worded definition of  “crime of violence.” Op at 5.

The district court, however, dismissed Kassir’s 2255 motion as untimely, saying the Supreme Court “‘has never held that Dimaya announced a substantive rule that applies retroactively on collateral review.’” Op at 6. Reasoning that “Dimaya did not reset the clock for Kassir to file a § 2255 motion, the district court held that his one-year window for doing so closed on April 19,  2012—that is, one year after his time expired for filing a certiorari  petition on direct review.” Op at 6.

The Circuit granted a certificate of appealability on two issues: (1) “whether Kassir’s motion is not time-barred because Dimaya or Davis established a new rule of constitutional law, made retroactive to cases on collateral review,” and (2) if so, whether Kassir’s conviction under 18 U.S.C. § 842(p)(2)(A) was predicated on a “crime of violence” under 18 U.S.C. § 16(b). Op at 7.

On  appeal, the Government didn’t dispute the petition’s timeliness; or argue that Kassir  procedurally defaulted his challenge to the § 842(p) conviction; or address  Kassir’s  substantive  challenge to his § 842(p) conviction. Instead, it contended that Kassir’s claim wasn’t cognizable under § 2255, because Kassir wasn’t challenging his two concurrent life sentences and therefore wasn’t “claiming the right to be released” from custody, as required by § 2255(a). Op at 7.

The Circuit noted that it reviews de novo a district court’s denial of a § 2255 motion. Op at 8. But it declined to decide whether Kassir’s  motion was timely “because the one-year filing deadline for a § 2255 motion is not a jurisdictional prerequisite to our review of the district court’s judgment, and the Government has expressly abandoned any challenge to the motion’s timeliness on appeal.” Id.

The Circuit also expressed “no view on the Government’s principal argument—that Kassir’s claim is not cognizable under § 2255—because regardless of its merit, we exercise our  discretion not to review Kassir’s collateral attack on only one of his convictions under the  concurrent sentence doctrine.” Id.

II. The Circuit holds, for the first time, that “the discretionary concurrent sentence doctrine remains available in the context of a defendant’s collateral attack on a conviction.” Op at 15.

Even though the “the  Government  waived [any concurrent sentence argument] by raising the  issue  in  a  mere  footnote  in  its  brief[,]” the Circuit invoked the doctrine because it is a  ‘“discretionary,’ judicially created tool,” Op at 9 n.15: “a species” of harmless error. Op at 15-16; id. 9-15.

The Circuit stated that Ray v. United States, 481 U.S. 736 (1987) “effectively recognized that the concurrent sentence doctrine had become moribund on direct appeal of federal criminal convictions.” Op at 11. Ray held that a defendant serving concurrent 7-year prison terms on three counts wasn’t serving concurrent sentences because of the $50 special assessment on each count of conviction. And every federal conviction carries a monetary special assessment. Op at 11.

But the Circuit concluded “that the concurrent sentence doctrine has some continued vitality, though to a more limited degree.” Op at 11. For example, Ray abolished the doctrine “for direct review of federal convictions while leaving it available for direct review of federal sentences.” Op at 17 (internal quotation marks omitted). The Circuit says it “regularly” applies the doctrine “in direct appeals where a defendant challenges only the length of one concurrent sentence, rather than the legality of a conviction underlying that sentence.” Op at 11.

But it stated: “[O]ur Court has yet to decide whether the discretionary concurrent sentence  doctrine remains available in the context of a defendant’s collateral attack on a conviction. Today, we answer that question in the affirmative.” Op at 15 (emphasis added). The Circuit chose “to rely on it here” because “[n]o matter our decision on Kassir’s § 2255 challenge to his 18 U.S.C. § 842(p) conviction, Kassir will remain in prison on at least two unchallenged life sentences[.]” Id.

There may be a possible circuit split, however. The Circuit states that it is “aware of statements by the  Fourth and Eighth Circuits” suggesting that the concurrent sentence doctrine doesn’t apply “where a defendant challenges a conviction under § 2255.” Op at 21. But, according to the Circuit, those statements are dicta and also the product of those circuits’ “overreading” a Supreme Court case. Op at 21-22.

(The Circuit also notes that it’s an open question whether the Brecht harmless error standard, which applies to state habeas petitions under 28 U.S.C. § 2254, “applies in a § 2255 proceeding.” Op at 16 n.43; see Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (an error is harmless unless “it had substantial and injurious effect or influence in determining the jury’s verdict”).)

III. But the concurrent sentence doctrine’s application isn’t “mandatory in  all  cases  where  the  petitioner  is  concurrently  serving  an  equal  or  longer  sentence” on a valid  count  of  conviction. And if circumstances change and petitioner is able to challenge the two concurrent life sentences, he can renew the 2255 motion and raise the Dimaya claim.

Three caveats to the Circuit’s concurrent-sentence holding.

First, the Circuit “decline[d] to go so far as to declare application of the concurrent sentence doctrine mandatory in all cases where the petitioner is concurrently serving an equal or longer sentence on another valid count of conviction.” Op at 23.

This is because the concurrent sentence doctrine is discretionary, “rooted in judicial convenience,” and therefore should be applied case by case. Id. “What’s  more, § 2255 is a ‘remedial  statute’  that  should  be ‘construed  liberally’ and  can ‘be  utilized  to  provide  a  more  flexible  remedy’ than ‘immediate and unconditional’ release from custody.” Id. So, “courts may look to the so-called Vargas factors to determine whether to rely on the concurrent sentence doctrine.” Op at 23-24 (United States v. Vargas, 615 F.2d 952, 959-60 (2d Cir. 1980)).  The five Vargas factors are: “the  unreviewed  conviction’s  effect  on  the  petitioner’s  eligibility  for parole,  the  future  application  of  recidivist  statutes  for  a  future  offense  by  the  petitioner, the petitioner’s credibility in future trials, the possibility of pardon, and societal stigma of a conviction[.]” Op at 23-24. The Circuit weighed these factors against Mr. Kassir. Op at 24.

Second, the Circuit concluded that, because Kassir’s claim “involves questions of law that do not require presentation of new evidence or examination of witnesses[,]” there is “no apparent detriment in leaving those questions for another day[.]” Op at 25. The situation would be different “if a defendant’s claim were premised on allegedly new evidence, where postponement of  [habeas] consideration might run the risk of memories fading, witnesses becoming unavailable, or evidence otherwise subject to spoliation.” Id.

And third, the Circuit’s “[o]ne final observation” was that if, in the future, Mr. Kassir is somehow able to challenge the two life sentences, he can renew his Dimaya challenge. Op 25-27.

It reasoned that a “new rule of constitutional law or newly discovered evidence” could, someday, invalidate “Kassir’s dual life sentences” — “however speculative, unlikely, and remote” the possibility. Op at 25-26. “In recognition of this possibility (as unlikely as it appears now),” the Circuit stated: “we affirm the district court’s judgment without prejudice to Kassir renewing his claim if and when he brings a colorable challenge to both of his concurrent life sentences.” Op at 26.

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