Post-Conviction Relief After

Fischer v. United States

From Federal Defense Attorney Ronald W. Chapman II

Fischer v. United States restricts the use of 18 U.S.C. 1512(c)(1) to the destruction of “evidence.” Most January 6th Defendants will obtain relief post-Fischer. Here’s how…

"The term 'otherwise' must be read in light of the preceding subsection, which concerns the destruction of records[]. Therefore, it applies only to conduct that impairs the integrity or availability of evidence used in an official proceeding."

Chief Justice John Roberts

Post-Conviction Relief for January 6th Defendants Post-Fischer v. United States

Guide to Seeking Post-Conviction Relief for January 6th Defendants Post-Fischer v. United States

Table of Contents

Introduction

As a seasoned federal criminal defense attorney, I understand the complexities and challenges faced by defendants convicted under 18 U.S.C. § 1512(c)(2) in the context of the January 6th events. The recent Supreme Court decision in Fischer v. United States has significant implications for these cases. This guide aims to educate defendants and their counsel on the legal pathways and strategies to seek post-conviction relief in light of Fischer.

Understanding the Fischer Holding

The Supreme Court in Fischer v. United States clarified the scope of 18 U.S.C. § 1512(c)(2), significantly narrowing the conduct that can be prosecuted under this statute. The decision held that the statute, which criminalizes obstructing, influencing, or impeding any official proceeding, should not be interpreted broadly to encompass actions that are not directly related to obstructing an official proceeding. This clarification affects many cases, particularly those stemming from the January 6th events, where defendants were charged under this statute.

Retroactivity of Supreme Court Decisions

Defining Retroactivity

1. Teague v. Lane (1989)
Principle: Established the framework for determining the retroactivity of new constitutional rules of criminal procedure on federal habeas corpus review.
Holding: New constitutional rules do not apply retroactively to cases on collateral review unless they fall into one of two exceptions:

  • Substantive Rules: New rules that place certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, or that prohibit a certain category of punishment for a class of defendants because of their status or offense.
  • Watershed Rules of Criminal Procedure: Procedural rules that are implicit in the concept of ordered liberty and are necessary to the fundamental fairness and accuracy of the criminal proceeding.

2. Schriro v. Summerlin (2004)
Principle: Clarified the distinction between substantive and procedural rules. Substantive rules generally apply retroactively, whereas procedural rules apply retroactively only if they are watershed rules.

3. Montgomery v. Louisiana (2016)
Principle: Reinforced that substantive rules apply retroactively, emphasizing that these rules alter the range of conduct or the class of persons that the law punishes.

Applying Retroactivity to Fischer v. United States

The Fischer decision narrows the interpretation of 18 U.S.C. § 1512(c)(2), decriminalizing certain conduct previously thought to fall under this statute. Based on the principles from Teague, Schriro, and Montgomery, Fischer constitutes a substantive rule and should apply retroactively because it affects the fundamental legality of the defendant's conviction.

Categories of Defendants and Pathways to Relief

Defendants Convicted at Trial

Key Strategies:

Direct Appeal: Defendants who have not exhausted their direct appeals can argue that their conduct does not fall within the scope of § 1512(c)(2) as clarified by Fischer. This argument hinges on the assertion that the statute was misinterpreted at the time of conviction.
Time Limit: Typically, a notice of appeal must be filed within 14 days of the entry of the judgment or order being appealed.

Motion for a New Trial: Under Rule 33 of the Federal Rules of Criminal Procedure, a motion for a new trial can be filed based on newly discovered evidence or a change in law. The Fischer decision can be considered a change in law that warrants a new trial.
Time Limit: Must be filed within 3 years after the verdict or finding of guilt if based on newly discovered evidence. If based on other grounds, it must be filed within 14 days after the verdict or finding of guilt.

Habeas Corpus Petition (28 U.S.C. § 2255): Defendants can file a motion to vacate, set aside, or correct the sentence, arguing that their conviction violates the Constitution or laws of the United States Time Limit: Must be filed within 1 year of the final judgment, or from the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review.

Legal Grounds:

Lack of Fair Notice: Argue that the defendant did not have fair notice that their conduct would be deemed criminal under the newly clarified statute, violating the Due Process Clause.

Insufficient Evidence: Assert that the evidence presented at trial was insufficient to support a conviction under § 1512(c)(2) based on the Fischer interpretation.

Ineffective Assistance of Counsel: Claim that counsel was ineffective for failing to anticipate or argue the implications of the Fischer ruling, thus affecting the trial's outcome.

Defendants Who Pled Guilty

Key Strategies:

Motion to Withdraw Guilty Plea: Under Rule 11 of the Federal Rules of Criminal Procedure, defendants may seek to withdraw their guilty plea by demonstrating a "fair and just reason," such as a significant change in law like the Fischer decision.
Time Limit: Must be filed before sentencing. After sentencing, withdrawal is possible on appeal or through a collateral attack.

Direct Appeal: If the plea agreement permits, argue that the plea was based on a misinterpretation of the statute. The appeal should focus on how the Fischer decision impacts the legality of the plea and the conviction.
Time Limit: Typically, a notice of appeal must be filed within 14 days of the entry of the judgment or order being appealed.

Habeas Corpus Petition (28 U.S.C. § 2255): Argue that the conviction and sentence are unconstitutional based on the new interpretation provided by Fischer. This can include claims of ineffective assistance of counsel or actual innocence under the clarified statute.
Time Limit: Must be filed within 1 year of the final judgment, or from the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review.

Legal Grounds:

Misunderstanding of the Law: Argue that the plea was based on a misunderstanding of the law as clarified by Fischer. Defendants might not have pled guilty if they had known their conduct did not meet the legal requirements under § 1512(c)(2).

Ineffective Assistance of Counsel: Claim that counsel failed to recognize and argue the correct interpretation of § 1512(c)(2), which was later clarified by Fischer.

Due Process Violations: Contend that their due process rights were violated because they were not provided with fair notice that their conduct was criminal under § 1512(c)(2) in light of the Fischer decision.

Defendants Awaiting Sentencing

Key Strategies:

Motion for Reconsideration: File a motion for reconsideration of the conviction based on the Fischer ruling. Argue that the conduct does not fall within the scope of § 1512(c)(2) as clarified by the Supreme Court.
Time Limit: Should be filed as soon as possible before the sentencing hearing.

Sentencing Memorandum: Submit a detailed sentencing memorandum emphasizing the Fischer decision. Argue for a lighter sentence or potentially even dismissal of the charges if the defendant’s conduct no longer meets the statutory criteria.
Time Limit: Should be submitted according to the schedule set by the court, typically several weeks before the sentencing hearing.

Presentence Investigation Report (PSR) Objections: File objections to the PSR, incorporating the Fischer decision. Argue that the facts, when viewed through the lens of Fischer, do not support the offense level calculated in the PSR.
Time Limit: Must be filed according to the court's schedule, usually within 14 days of receiving the PSR.

Argument for Downward Departure or Variance: Argue for a downward departure or variance under the Federal Sentencing Guidelines, citing Fischer as a basis for lesser culpability or a more appropriate sentence under the correct statutory interpretation.
Time Limit: Typically argued at the sentencing hearing but should be included in any pre-sentencing filings.

Legal Grounds:

Clarification of Statutory Scope: Emphasize that the Fischer decision narrows the scope of § 1512(c)(2). If the defendant’s actions do not fit within this newly clarified scope, it is a compelling argument for a reduced sentence or reconsideration of the conviction.

Due Process and Fair Notice: Argue that the defendant was not provided with fair notice that their conduct was criminal under § 1512(c)(2) as interpreted by Fischer.

Claiming Ineffective Assistance of Counsel

Importance of Preserving the Fischer Argument

Defense counsel must preserve all potential arguments that could affect the outcome of a case. In light of Fischer, failing to argue that the defendant's conduct does not meet the statutory requirements of § 1512(c)(2) could constitute ineffective assistance of counsel. The Sixth Amendment guarantees defendants the right to effective assistance of counsel, which includes the duty to raise all viable defenses and arguments.

Legal Standard for Ineffective Assistance of Counsel

To claim ineffective assistance of counsel, a defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984):

  1. Deficient Performance: The defendant must show that counsel's performance was deficient, falling below an objective standard of reasonableness. This includes failing to recognize and argue significant legal developments like Fischer.
  2. Prejudice: The defendant must demonstrate that the deficient performance prejudiced the defense, meaning there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.

Seeking Habeas Relief for Ineffective Assistance of Counsel

Steps to File a Habeas Corpus Petition (28 U.S.C. § 2255)

  1. Preparation: Gather all relevant documents, including trial transcripts, plea agreements, and court orders. Collect evidence showing how the Fischer decision impacts the case and how counsel failed to raise this argument.
  2. Draft the Petition: Clearly outline the claim of ineffective assistance of counsel. Explain how counsel's failure to anticipate or argue the implications of Fischer constitutes deficient performance and how this failure prejudiced the case.
  3. Filing the Petition: File the petition in the federal district court that imposed the sentence. The petition must be filed within one year of the final judgment or the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable.
  4. Legal Arguments:
    • Deficient Performance: Argue that competent counsel would have anticipated or recognized the significance of the Fischer decision and raised it as a defense. Provide case law and expert opinions supporting this argument.
    • Prejudice: Demonstrate how the failure to argue Fischer affected the outcome. For instance, show that the defendant's conduct does not meet the criteria of § 1512(c)(2) as clarified by Fischer, and that raising this argument could have led to an acquittal, a more favorable plea deal, or a reduced sentence.

Importance of Timeliness

Timeliness is crucial in filing a habeas corpus petition. Defendants must adhere to the one-year statute of limitations. Exceptions to this limit are rare and usually involve extraordinary circumstances. Therefore, it is imperative to act swiftly upon discovering grounds for an ineffective assistance claim based on the Fischer decision.

Conclusion

Defendants convicted under 18 U.S.C. § 1512(c)(2) in light of the January 6th events should closely examine the implications of Fischer v. United States and consider the outlined strategies for seeking relief. Whether through direct appeals, motions for new trials, habeas corpus petitions, or arguments at sentencing, it is essential to leverage the Fischer decision effectively.

Claiming ineffective assistance of counsel for failing to preserve the Fischer argument is a viable strategy for many defendants. It requires a thorough understanding of the legal standards and a timely, well-documented approach. Consulting with legal counsel experienced in federal criminal defense and post-conviction relief is critical to navigating these complex legal proceedings and developing tailored arguments for each specific case. This guide provides a framework for understanding and pursuing post-conviction relief, but individualized legal advice remains paramount for effective advocacy.