Concurrent Sentence Doctrine Alive and Well for Collateral Review
In United States v. Kassir, the Second Circuit (Jacobs, Nardini) held that the concurrent sentence doctrine applies to collateral review of criminal convictions. Under the doctrine, a court may decline to consider a challenge where it would have no effect on the defendant’s term of imprisonment. The ruling will deprive some defendants of having their 2255 petitions decided on the merits. However, if the ruling is applied as it is written, only defendants whose sentences would not be reduced in duration will be so impacted.
Oussama Kassir, a Lebanese-born Swiss citizen, conspired with Haroon Rashid Aswat to establish a jihadist training facility near Bly, Oregon, at the direction of Egyptian cleric Abu Hamza al-Masri. Kassir instructed two recruits on combat tactics and the use of improvised biological agents. U.S. law enforcement had been tipped off to the plan and monitored activities at the facility for about two months, until Kassir and Aswat abandoned the camp. Kassir was later arrested in Prague and extradited to the United States for trial.
After trial, Kassir was convicted on several counts of providing and concealing material support and resources to terrorists, conspiring to provide and conceal material support and resources to terrorists; conspiring to kill, kidnap, maim, and injure persons in a foreign country; and distributing information relating to explosives, destructive devices, and weapons of mass destruction. For the terrorism convictions, Kassir was sentenced to multiple concurrent life sentences. For distributing information relating to explosives, destructive devices, and weapons of mass destruction, Kassir was sentenced to 20 years of imprisonment. In 2011, Kassir’s convictions and sentence were affirmed on direct appeal. United States v. Mustafa, 406 F. App’x 526 (2d Cir. 2011).
Approximately four years later, Kassir filed a pro-se petition for habeas corpus under 28 U.S.C. § 2255, challenging only his conviction for distributing information relating to explosives, destructive devices, and weapons of mass destruction. His argument was that the definition of “crime of violence” in 18 U.S.C. § 842(p)(2)(A)--for which he was convicted--is unconstitutionally vague, based on Supreme Court decisions invalidating similar language in other statutes. See United States v. Johnson, 576 U.S. 591, 597 (2015) (Armed Career Criminal Act); Sessions v. Dimaya, 138 S. Ct. 1204, 1210 (2018) (18 U.S.C. § 16(b)); United States v. Davis, 139 S. Ct. 2319, 2324 (2019) (18 U.S.C. § 924(c)). The District Court (Torres, J.), denied Kassir’s petition as untimely because it was not filed within one year and because Dimaya did not reset the clock to file a § 2255 motion because it did not announce a substantive rule that applies retroactively on collateral review.
The Second Circuit granted Kassir’s motion for a certificate of appealability on the issue of whether the petition was timely and whether Dimaya announced a substantive rule that applies retroactively on collateral review.
The Circuit’s Decision
On appeal, however, the Second Circuit did not reach the substance of Kassir’s appeal, but rather affirmed the denial of the petition under the so-called “concurrent sentence doctrine.” Under this doctrine--which the Court described as a “species” of harmless-error analysis--a court has discretion to deny a habeas petition where the granting of the petition would not change the petitioner’s sentence. For example, in Kassir’s case, he is already serving multiple life sentences on other counts, which were not challenged in his petition. So, whatever the disposition of his petition, he would continue to spend the rest of his life in prison. In such a situation, a court need not expend judicial resources on issues that will have no practical effect on the petitioner’s sentence.
The concurrent sentence doctrine was originally recognized in the context of direct appellate review. See, e.g., United States v. Vargas, 615 F.2d 952, 959-60 (2d Cir. 1980). But in Ray v. United States, 481 U.S. 736 (1987), the Supreme Court significantly limited its application when it held that it does not apply to direct appeals where separate convictions carry distinct special assessments (essentially a fine). In other words, the vacatur of any one of the convictions, even if they carried the same term of imprisonment, would still reduce the amount of money the defendant had to pay. Therefore, Ray effectively abolished the concurrent sentence doctrine as to direct appeals because virtually all federal convictions involve the imposition of a special assessment or other monetary component. It continues to apply in the limited circumstance where a defendant challenges only the duration of a term of imprisonment, but not the underlying conviction. See, e.g., United States v. Bradley, 644 F.3d 1213, 1293–94 (11th Cir. 2011); United States v. Ellis, 326 F.3d 593, 600 (4th Cir. 2003); United States v. Burns, 298 F.3d 523, 544–45 (6th Cir. 2002).
More recently, Courts have grappled with whether the concurrent sentence doctrine continues to apply in the context of collateral review. Courts of Appeals have repeatedly held that it does. See, e.g., Oslund v. United States, 944 F.3d 743, 746 (8th Cir. 2019); United States v. Charles, 932 F.3d 153, 155 (4th Cir. 2019); Ryan v. United States, 688 F.3d 845, 848–49 (7th Cir. 2012). The Second Circuit chose to join this growing consensus. It reasoned that, absent prejudicial error, there can be no collateral relief under § 2255. It also distinguished direct appeal from collateral review, in that the latter is exclusively a challenge to the defendant’s custody. Although collateral review may also have effects on other aspects of a defendant’s sentence (i.e., fines, special assessment, voting rights, etc.), those non-custodial terms cannot, standing alone, entitle a defendant to collateral relief. It follows that a collateral challenge that will have no effect on custodial terms of imprisonment is precisely the situation where the concurrent sentence doctrine is applicable.
The Court, however, qualified its ruling into two respects. First, it went to lengths to explain that application of the concurrent sentence doctrine is discretionary, not jurisdictional. There may be circumstances where a judge may wish to address arguments even when they would not result in a shorter sentence, such as when the challenged conviction involves social stigma, where recidivist statutes could apply (i.e., “three strikes law”), where the conviction could be relevant to the defendant’s credibility in future testimony, or where a pardon of the non-challenged convictions is reasonably possible. Second, the Court affirmed without prejudice to Kassir renewing his petition if his life sentences were somehow overturned. That seems extremely unlikely because those convictions had been affirmed on direct appeal and the time for collateral challenges has long passed. But as Kassir argued “[o]ne never knows what the future will bring,” so the Court left the door open in the event Kassir’s situation somehow changed in the future.
The Court sensibly extends the concurrent sentence doctrine to collateral review when such a challenge would have no practical effect on the duration of imprisonment. Collateral review, routed in the writ of habeas corpus, is aimed at remedying unlawful detention, resulting in release from custody. When a defendant challenges a conviction that will have no practical effect, the petition does not affect “custody” and would not result in release of the defendant. The Court reasonably decided that courts need not expend resources deciding such petitions. This seems particularly reasonable given that the federal courts are inundated with habeas petitions under sections 2254 and 2255. Some of these petitions are meritorious, but the sheer volume of petitions strains the courts capability to give each careful consideration.
The situation is made worse by the fact that there is usually no counsel provided to prosecute a 2254 or 2255 petition, which means that judges are left to sift through the record without the benefit of counsel. In addition, there may be a concern that spending time on petitions that would not lead to the release of a convicted defendant (such as Kassir’s) may detract from judges’ ability to dedicate time to petitions that would actually result in the release of a wrongfully detained defendant. In addition, the Court left itself some wiggle room, making clear that in some circumstances, it would be appropriate to consider the merits, such as when the challenged count of conviction could form the basis for an enhanced sentence in the future. This seems important given that sentencing is often based on prior convictions, and an additional conviction for a drug crime or a crime of violence can often result in a mandatory sentencing enhancement.
One downside of the decision relates to the general development of the law. The argument raised by Kassir will now be left undecided, with lower courts deprived of the guidance that comes from an appellate decision. A precedential decision here might not have aided Kassir in seeking his release from prison, but it might have aided another defendant who is facing the same charges today. In this sense, the development of the law is slowed.
Although the Court did not couch its holding in jurisdictional terms, there is an argument that the doctrine has a jurisdictional basis. Indeed, the Third Circuit appears to have come to a similar conclusion in United States v. Ross, 801 F.3d 374, 382 (3d Cir. 2015), where it held categorically that a defendant whose petition would not change the term of imprisonment did not seek “release from custody” within the meaning of section 2255 and therefore could not maintain a petition. Moreover, a 2255 petition, like all civil proceedings in federal court, must satisfy the requirements of Article III standing, namely that the petitioner’s injury (i.e., being unlawfully detained) is likely to be redressed by a favorable decision. When the petitioner will remain in custody the same duration regardless of the petition’s disposition, it is difficult to say the petitioner has standing to pursue their claim. Of course, the petitioner may be able to point to other potential benefits of the granting of the petition, such as relief from social stigma, potential application of recidivist statutes, etc., but in many cases these effects could be too speculative to confer standing. The Court did not address these concerns, but instead decided to rely on the historical rule that the concurrent sentence doctrine rested on the discretion of the district court.
Regardless, the Court’s ruling means that those serving federal sentences will have a much more difficult time challenging their convictions in a piecemeal manner. Unless their collateral challenge would result in a reduction in the term of imprisonment, their petition may well be denied on discretionary grounds.
By George B. Fleming and Harry Sandick