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valle was sentenced to 360 months in prison. and so he filed for habeas relief in the eastern district of new york. while the lower court agreed that valle’s conviction was invalid, it denied his request for the same reasons he was convicted: namely, that the prosecution had not adequately established that the conduct underlying his conviction was real, and that the evidence was too stale to establish that valle had ever formed the necessary agreement to kidnap the women.

we granted the writ because we concluded that the prosecution had adequately established that the conduct was real, but as to the staleness issue, we held that the government’s evidence was stale because the only evidence of valle’s specific plans to kidnap the women was the online conversations themselves–it was the only evidence that valle had actually discussed the kidnapping and the crimes he was planning, and it was not specific enough to establish that the conversations were anything more than fantasy.

the most important thing to remember is that the 95% confidence interval for the average sentence is the average sentence including cases that got probation only, plus or minus 2.5 standard errors. so if the average sentence excluding probation cases is 43 months, and the standard error for those cases is 4 months, then the 95% confidence interval for the average sentence is from 38 to 46 months. if, on the other hand, the average sentence excluding probation cases is 47 months, and the standard error for those cases is only 5 months, then the 95% confidence interval for the average sentence is from 39 to 53 months. as you can see, the average sentence can be significantly different from the average sentence including all cases, including some defendants who got probation only.

Regrettably, there is no record of the public comments the Government made in conjunction with its brief in Johnson. Nevertheless, the Department of Justice has now filed a Motion for Leave to File Brief as Amicus Curiae, asking the Court to take up its argument that the Supreme Court does not have original habeas jurisdiction over Johnson claims. One might think that this motion would be a good opportunity for the government to see if its current theory of original habeas jurisdiction is consistent with the view the government took in the Haganscase, in which the government argued that Johnsonclaims could be pursued only by filing an initial habeas petition in the Supreme Court. Instead, the government has repeated the same jurisdictional theory it advanced in Hagans — namely, the theory that only the Supreme Court can hear initial habeas claims brought by state prisoners, unless Congress specifically and unequivocally altered the applicable habeas jurisdiction. (Presumably, this is also the position of the Obama administration, since Secretary of the Department of Justice Loretta Lynch issued an administrative order in June 2015 instructing immigration officers to stop prosecuting Johnsonclaims). As with its other recent briefs, the government has asked the Court to resolve the circuit split by creating a new federal remedy — habeas relief for federal prisoners challenging their Johnsonconvictions — rather than to resolve the circuit split on the merits. That strategy is probably a good way for the government to avoid the consequences of its prior jurisdictional position in this case.
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