CLICK TO READ Joseph Aruanno v. State of New Jersey, Docket # 23-2226

In 2005, after serving a ten-year sentence for second-degree assault in New Jersey, Aruanno was civilly committed as a sexually violent predator (“SVP”) pursuant to the Sexually Violent Predator Act (“SVPA”), N.J. Stat. Ann. § 30:4-27.24 to -27.38. In March 2021, he filed a petition on a 28 U.S.C. § 2254 form, claiming that he was being denied annual review hearings and the appointment of counsel required by the SVPA. See N.J. Stat. Ann. § 30:4-27.35; 27.31. Specifically, he alleged that he had only two annual reviews in 17 years and “counsel only half of that time.”  He requested prospective injunctive relief only, specifically asking the District Court “[t]o remand and demand compliance from the state court(s), or appoint counsel for a full review of this case.” IHe also filed a motion for the appointment of counsel, which the District Court denied without prejudice.

The District Court agreed with the State that Aruanno had not exhausted his state court remedies with respect to his habeas claims, that the claims were procedurally defaulted, and that he could not show cause and prejudice or a miscarriage of justice to overcome his default.  The District Court recognized that the petition “does not challenge the validity of any criminal conviction; instead, it alleges that he has been denied yearly commitment reviews as required by the SVPA and has been denied the appointment of counsel during his appeals.”  Nevertheless, it concluded that Aruanno was “challenging his involuntary commitment,” and thus construed the petition as seeking habeas relief.

The Third Circuit granted a Certificate of Appealability and reversed the order denying habeas relief.  A prisoner may use both 42 U.S.C. § 1983 and habeas corpus to seek redress in the federal courts for “unconstitutional treatment at the hands of state officials.”  This includes prisoners subject to civil commitment.  The Third Circuit remanded the case to the District Court for a new determination under 42 U.S.C. § 1983.

CLICK TO READ United States v. James Cole, Docket # 22-1518

In 1989, Defendant was convicted of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1) and was sentenced to ten months’ imprisonment, followed by three years’ supervised release. While he was on supervised release, he was charged with, inter alia, engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848. He was convicted of that crime in 1993 and sentenced to life in prison.  In 1995, the District Court found that he had violated the terms of his supervised release, revoked his supervised release, and sentenced him to eighteen months’ imprisonment. The court ordered the eighteen months to run concurrently with Cole’s life sentence in the CCE case.

In February 2022, Cole filed a petition for a writ of error coram nobis seeking to vacate his § 922(g) conviction on the ground that the Government had not established that he knew he was a felon when he possessed the gun, as now required by Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  The District Court denied the petition, concluding that Cole was ineligible for coram nobis relief because he was still “in custody” for the disputed § 922(g)(1) conviction. Cole appeals, arguing that he cannot be deemed “in custody” for a concurrent sentence that he completed years ago.

Coram nobis is available “to attack [federal] convictions with continuing consequences when the petitioner is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.”  In this case, Cole is serving a life sentence for the 1993 CCE conviction. The § 922(g)(1)-related sentence ran concurrently with the life sentence and is fully discharged. Therefore, the District Court erred in concluding that “because Mr. Cole is serving a consecutive sentence, he is still deemed to be in custody on the completed sentence.”

The case was remanded for a new determination.

CLICK TO READ United States v. Terell Crump, Docket # 22-3379

While on parole for convictions under Pennsylvania law for robbery and aggravated assault, Defendant fired a gun out of a window in a home in Philadelphia and then handed the gun to its owner.  The owner later told an ATF agent that it had an obliterated serial number.  On those facts, Crump pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2).  The District Court calculated both of Defendant’s prior convictions to be Crimes of Violence, leading to a 12-point increase in the Base Offense Level – eight points for the first crime of violence and four additional points for the second.  The District Court also increased Crump’s offense level by another eight points for two specific offense enhancements – four for possession of a firearm with an obliterated serial number, and four for using a firearm in connection with felony reckless endangerment of another person.  In aggregate, those values, after a three-point deduction for Crump’s acceptance of responsibility, yielded a total offense level of 29. That score, when combined with his Category IV criminal history, resulted in a sentencing range of 121 to 151 months in prison for Crump.  Because the statutory maximum sentence was 10 years, he was sentenced to the statutory maximum.

The Third Circuit held that second-degree aggravated assault under Pennslyvania Statutes § 2702(a)(3) is not a violent felony under the Armed Career Criminal Act.  Because the term ‘violent felony’ in the ACCA receives the same meaning as the term ‘crime of violence’ in Guideline § 4B1.2, Crump’s conviction for second-degree aggravated assault – which is not a violent felony under the ACCA, see id. at 155 – should not have been used to determine Crump’s base offense level.

The case was remanded for resentencing.