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Another Miscarriage of Criminal Justice in Atlanta: The Eleventh Circuit Federal Court of Appeals Renews Our Tenacity in Fighting for Rights

Kish Law LLC

Demarick Hunter is serving a sentence of 15 years and 8 months in federal prison for possessing a firearm. The Armed Career Criminal Act (ACCA) provides for a minimum sentence of 15 years for career criminals who carry firearms. Mr. Hunter’s prior convictions do not qualify him as a career criminal under the ACCA. The Eleventh Circuit acknowledged that he is serving an illegal sentence, but refused to allow him to appeal it.

The ACCA applies to people with at least 3 prior convictions for violent felonies or drug offenses. Mr. Hunter was sentenced as a career criminal under this act because in addition to one conviction for a drug offense, his two prior convictions for carrying a concealed weapon were considered violent felonies. Last year the Eleventh Circuit acknowledged that carrying a concealed weapon may not be a violent felony. In the Hunter case last month, the Eleventh Circuit agreed that Hunter was erroneously sentenced, but denied his request for a certificate of appealability because “a sentencing error alone does not amount to a substantial showing of the denial of a constitutional right.” The miscarriage of justice in this decision for Mr. Hunter is maddening in and of itself.

However, there is an even more infuriating aspect to this decision. The Court notes at the end of this decision that Mr. Hunter can’t show ineffective assistance of counsel because his lawyers didn’t argue at sentencing or direct appeal that carrying a concealed weapon was not a violent felony under the ACCA. Most lawyers wouldn’t have done so. At the time of Mr. Hunter’s sentencing and direct appeal, binding case law held that carrying a concealed weapon was a violent felony.

The reason this is so galling is that Mr. Hunter’s lawyers, like many attorneys, presumably did not challenge this law because judges often get upset with lawyers for raising challenges that are contrary to established precedent. Judges think lawyers are being unprofessional when they raise such challenges. Down the road, though, when the law finally turns in the favor of defendants, they suffer the consequences. Had Mr. Hunter’s attorneys raised this argument at sentencing and on appeal, the outcome of this case would have been quite different.

Lawyers must not be afraid of upsetting trial judges by challenging bad law. We must be willing at the trial and appellate level to raise challenges that may fly in the face of existing precedent. The Hunter case reminds us yet again of why we fight with such resolve.

The opinion in the Hunter case can be found here.

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