In 2015, a group of students in Fordham Law’s Federal Litigation Clinic, under the supervision of Professors Michael W. Martin and Ian Weinstein, took on representation of a client who was arrested in a controversial drug “reverse stash house sting.” Recently, students in the Fall 2019 clinic won a habeas corpus petition in federal court, resulting in striking of one of the most onerous convictions from the client’s record that affects his immigration status. While there are still several hurdles before this client’s “success” can be fully realized, the latest victory should be savored as the culmination of the efforts of more than a dozen students who have thus far worked on the case.
A reverse stash house sting is a law enforcement tactic that has come under heavy criticism, including by the Chief Judge of the U.S. District Court for the Northern District of Illinois. In these cases, government agents or informants seek out co-conspirators to rob fictitious narcotics stash houses, often with the representation that the crime will be an “inside job,” all but guaranteeing a big payoff for little relative risk. Although judges have previously expressed concern about this technique, it is not illegal. In a sting of this nature, the police picked up the client and arrested him on three charges. Pursuant to a plea agreement that the clinic helped arrange, the client pled guilty to Hobbs Act conspiracy and possession of a firearm during the course of a “crime of violence.” The government dismissed the only remaining count of the indictment, conspiracy to distribute narcotics.
Habeas corpus is a last resort procedure to challenge the legal basis for imprisonment, after a direct appeal has failed. In this case, the habeas issue stems not from the stash house sting controversy, but from Supreme Court opinions—beginning with U.S. v. Johnson in 2015 and ending with U.S. v. Davis in 2019—that found certain statutory language void for vagueness regarding what constitutes a crime of violence. The students filed the habeas petition in the U.S. District Court for the Southern District of New York on September 28, 2019, and a reply brief on November 11, 2019. They argued that U.S. v. Davis had found the “crime of violence” language in the firearm possession statute to be unconstitutionally vague, and as such the firearm charge should be vacated. The government argued that the dismissed narcotics charge (which was eliminated in the original plea agreement) acted as a legitimate predicate for the firearm possession.
It was in late Fall 2019 that the district court judge granted the clinic’s petition, quoting their text twice and bolding the last sentence of the letter in his final opinion.
“I remember on our last day of the seminar, Sean mentioned that if this habeas petition didn’t go in our favor, that would be really disheartening. I felt the exact same way,” said Journee Berry ’20, who worked on the brief with classmates Natalie Hoehl ’20 and Sean Donoghue ’20 over the fall. “Not only was the decision in our favor, but it actually used language from our brief. It was an amazing feeling.”
When the case initially began, the client was pursuing his G.E.D. and was engaged to his son’s mother. His fiancée passed away from natural causes during the client’s imprisonment. Having served the entirety of the 61-month sentence imposed by Judge Scheindlin, the client is now in Immigration and Customs Enforcement (ICE) custody and is eligible for immediate removal. Even though he is a permanent legal resident, ICE is trying to deport him to a country that he and his parents left when he was six years old and where his family does not currently live. The client has already spent more than two years in ICE custody as he awaited a decision on this motion and his ongoing deportation proceedings.
The outcome of the habeas decision is critical to the client’s ability and ongoing effort to regain his permanent residency status. The victory is just one step in a longer process that other clinic students will continue to work on. Indeed, over the summer, students Ben Winnick ’20 and Kelly O’Connor ’20 drafted a clemency letter that Berry, Hoehl and Donoghue completed, indicating to the Governor that their client was not a hard criminal and whose minor New York State crimes were playing an outsized role in his immigration proceedings. The clinic awaits word on the petition and remains hopeful.
Being able to assist the client on several fronts is a bonus of Lincoln Square Legal Services—the Law School’s non-profit under which the clinic operates—clientele. “We’re lucky enough to have wonderful resources, both from the school and in terms of the students’ energy and intelligence, sticking with it,” Martin said.
In the same vein, Winnick added, “It’s nice from a high-level viewpoint to see that the students coming in and out are always contributing. Whatever groundwork we put in, they’ll pick it up and then students this next semester will pick it up as well.”