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Why You Should Not Write a Letter to Your Judge

The urge to write a letter to your judge can be strong, especially during times like the COVID-19 crisis, the pending passage of the EQUAL Act and immediately after the judge rules on your case.  But “just trying to explain things” may seriously affect your chances of fighting your case later.  

Our office communicates with hundreds of inmates and their families each week through phone calls, emails and corrlinks.  At least once a day we hear either an inmate or a loved one say that either they wanted to write a letter to the judge explaining their side of the story, they already wrote the letter to the judge and haven’t heard back on it or they wrote a letter to the judge and the prosecutor wrote a response that indicates that their claim had no merit.  This usually happens for Motions to Vacate Sentence under 28 USC 2255 but since the passing of the FIRST STEP Act we have also seen this in compassionate release motions under 18 USC 3582, especially during the COVID pandemic as well as motions for reduction of sentence under Section 404 of the FIRST STEP Act.  

In addition, we believe that the EQUAL Act, which eliminates the disparity between crack cocaine and powder cocaine, may be passed soon offering certain inmates a unique opportunity to seek a sentence reduction.  

While we can understand why it might make sense to write a letter to your judge explaining your side of the story, we have found that writing such a letter can have dire consequences for your case and in some cases, prevent you from filing similar motions in the future.  

Pro Se Letters to the Judge are Construed as Legal Arguments and can be considered Motions.  

When a pro se filer writes a letter to the judge, the court reviews the letter.  Generally, if the letter has any sort of claim or argument that, if proven, would entitle the pro se person to relief, then the letter is “construed,” or treated as a motion.  Sometimes the judge can give a person a short amount of time to decide if that is what they wish but that only applies to certain types of letters.  

An example of this would be a letter written by a defendant indicating that their lawyer failed to investigate certain items of evidence that the defendant wanted to be investigated.  The court could construe that as a 2255 motion and ask the government to respond.  Or a letter to the court explaining that a prison has done nothing to combat the COVID crisis could be construed as a 3582 motion.  

Pro se letters and motions are held to a lesser standard for motions than ones that were written by attorneys:

Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears   "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45 -46 (1957). See Dioguardi v. Durning, 139 F.2d 774 (CA2 1944).”

Haines v. Kerner , 404 U.S. 519, 20-21,(1972).  This means that when an incarcerated person writes a letter to the judge, it can be construed as a motion.  

A letter to the judge may omit important legal and procedural requirements.

Usually the sort of letters that we see are written from individuals filing their own motions (this is referred to as pro se). Those letters explain things that the pro se filer wants the judge to know about the case, such as things like “my lawyer didn’t explain my options to me before trial” or “our prison has a high amount of COVID cases.”  These things may be fine and true, but in most cases they are not the only legal or procedural requirements.  

A motion to vacate a sentence based on ineffective assistance of counsel has legal requirements separate from a person’s lawyer not explaining their options.  If the inmate is claiming ineffective assistance of counsel then usually they should also explain the prejudice argument, that being that there would be a reasonable likelihood for a different result absent the ineffective assistance.  Motions to reduce a sentence because of the risk of receiving COVID must also include how the incarcerated person would be more susceptible to serious illness and death if they were to be infected with COVID-19 as well as reasons why the judge should exercise their discretion to reduce the inmate’s sentence.  

In addition, there are several procedural requirements that are also required.  Among the most important procedural considerations for motions to vacate are the statute of limitations, which is when the motion must be filed.  This one cannot be avoided or skirted because it is written in statute.  Compassionate release motions can only be filed after the inmate has written to the warden of the prison and waited the required time period, which at the time of this writing was 30 days

Although the EQUAL Act has not passed, we believe that there will be two questions that a claimant for relief under the EQUAL act will have to answer: 

  1. Does the claimant have a conviction or sentence for crimes “involving cocaine base?”  
  2. Should the court grant the sentence after considering the 3553(a) factors?  

Like we said last week, when it comes to the first question, there will be both easy cases and difficult cases.  We have already answered hundreds of emails about EQUAL Act eligibility and some of them have indeed been difficult.  If an inmate on a hard case writes a letter to their judge asking for relief without explaining why they should get relief they very well may be denied for failing to make legal arguments to the tough issues, especially surrounding the question of whether the conviction was for crimes “involving cocaine base.”  

Similarly if you mail a letter to your judge then you may not have sufficient documentation to convince the judge to grant you relief after considering 3553(a).  As we indicated early during the COVID-19 compassionate release cases, it is not enough to state that you are at risk:  letters of support from family and friends, letters from employers indicating that a job is waiting for you, certificates and transcripts from the prison are all vital to the 3553(a) consideration.  A simple letter to the judge will not be enough in these cases.  

An attorney will be able to handle subsequent briefing quickly and competently.

Sometimes, after the claimant has filed their motion and the government has entered their response, the court may ask for subsequent briefing.  This is usually regarding a specific issue, possibly dealing with the impact of certain court decisions.  Indeed, in a recent case of ours the court asked for supplemental briefing about the impact of Skhambi, which held that USSG 1B1.13 was not binding to compassionate release motions in the Fifth Circuit.  In our case, the Court wanted this supplemental briefing done in 14 days, something that may be difficult to research and complete for an inmate facing possible lockdowns, transfers and other unexpected circumstances inside the walls of the prison. 

The Court’s Ruling on your case can seriously affect your ability to file again if applicable.  

Finality of judgment is an important part of the legal system.  When a judge denies a motion by an inmate there are few ways to bring a subsequent motion to court.  This is vitally important as one is considering writing a letter to their judge.  

Generally speaking, a person only has one chance to file a 2255 motion.  While there are exceptions, they are rare and require approval by an appellate court.  See 28 USC 2255(h).  This means that if you write a letter to the judge trying to explain what happened and about how your trial or sentencing lawyer did not fight for you in a certain way, the court can deny you and you may be unable to bring forth another motion.  

For Section 404 motions the text of the FIRST STEP Act specifically said that if a person was denied on the merits of the motion that they were precluded from filing another motion for relief.  We saw and heard from many claimants and their loved ones that they tried to write a letter to their judge for Section 404 relief, the judge denied it because of the 3553(a) factors and we had to tell them that we could not file another motion for them because they were procedurally barred.  

While there is no similar provision regarding the EQUAL Act, we believe a similar section could be added to the text of the bill or courts could prepare denial orders that are so harshly damming regarding 3553(a) that a second motion would not be proper.  We saw several compassionate release denials where the court went out of their way to say that even if they did believe that extraordinary and compelling reasons existed that they would still deny relief because the claimant was not an appropriate candidate after considering the 3553(a) factors, explaining them in excruciating detail before denying relief.  We informed many of those people that we could not represent them as we believed that further representation was inappropriate.  


We hate to see an inmate get denied when they are eligible for relief.  But we have talked to many loved ones and read many letters that were construed as motions by the court and denied because they did not have the legal requirements for court motions, even when liberally construed.  We encourage you not to write a letter to the judge on your case, even if you believe that writing said letter will straighten everything out.  

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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