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Indiana ‘miscarriage of justice’ splits 7th Circuit judges 5-4

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A majority of nine 7th Circuit Court of Appeals judges narrowly denied rehearing en banc for an Indiana man whose sentence was erroneously calculated. A dissenting judge called the case a “miscarriage of justice.”
 
The petition for a rehearing en banc in Bernard Hawkins v. United States of America, 11-1245, divided circuit judges 5-4. Chief Judge Frank Easterbrook and Circuit Judges Michael Kanne, Richard Posner, Diane Sykes and John Tinder denied rehearing, while Judges David Hamilton, Ilana Rovner, Ann Claire Williams and Diane Wood dissented. Judge Joel Flaum took no part in the case, Bernard Hawkins v. United States of America, 11-1245.

Earlier this year, Hawkins was denied resentencing in a post-conviction relief proceeding on a conviction enhanced as a career offender, even though that distinction didn’t apply to him. At the time of his sentencing, he was considered a career offender because he had two “walkaway” escape convictions. He was sentenced to 151 months by Judge James Moody of the U.S. District Court, Northern District of Indiana, the bottom of the guideline range. If he wasn’t considered a career offender, the guideline range for the assault would have been anywhere from 15 to 30 months.

Hawkins sought a rehearing en banc after the U.S. Supreme Court decision in Peugh v. United States, 133 S.Ct. 2707 (2013). Justices ruled 5-4 that the ex post facto clause prevents courts from sentencing a defendant based on guidelines promulgated after the commission of a crime if the newer guidelines would result in a sentencing range higher than those in place when a crime was committed.
 
 “The issue in this case differs from that in Peugh in several respects,” Posner wrote for the majority. “One is that Peugh involved constitutional error — a violation of the ex post facto clause. Our case involves no claim of constitutional error — no claim for example that Hawkins’s sentence exceeded the statutory maximum … There is just a claim that the sentencing judge miscalculated the advisory guidelines range and might have given a lower sentence had he not miscalculated it.

“Our panel opinion does not deny that the district judge had committed an error that would be corrigible on direct review. But we found the social interest in a belated correction of the error outweighed by the social interest in the finality of judicial decisions, including sentences,” Posner wrote.

“The panel dissent evinced no recognition of the importance of finality to an effective judicial system, or of the difficulty of balancing “fairness” (meaning what exactly?) against finality. … Finality is an institutional value and it is tempting to subordinate such a value to the equities of the individual case. But there are dangers, especially if so vague a term as ‘fairness’ is to be the touchstone.”

But Rovner, in dissent, said the case was less about fairness than about the court saving face.

“Bernard Hawkins has been sitting in a Federal Correctional Institution, where he is scheduled to remain for approximately twelve-and-a-half years. It is uncontroverted that the district court erred when it calculated his sentence using the career offender enhancement, and had the court not erred, his calculated sentencing range would have been approximately ten times less — somewhere in the range of 15-21 months. Yet despite the known and conceded error, we are told that for the sake of principles of finality, Hawkins must remain in prison for the entire 151-month sentence,” Rovner wrote.

“In light of (Peugh), and for the reasons articulated in the dissent to the panel opinion, I believe it is our duty to reconsider Mr. Hawkins’ case.

"The district court erred in finding that Hawkins was a career criminal. Such an error constitutes a miscarriage of justice that can be remedied via petition for relief under § 2255, and, regardless of their advisory nature, the Sentencing Guidelines are influential enough that errors in their calculation cause harm. The Supreme Court’s reasoning in Peugh — which is consistent with the tenets of fairness that are the quintessence of our system of justice — calls for us to rehear this case,” Rovner wrote.
 

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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