Government Can Appeal District Court's Refusal to Set New Trial Date Following Remand

U.S. v. Bergman, 2014 WL 1259589 (3/28/14) (Col.) (Published) - The district court failed to proffer the requisite powerful justification for precluding the government from retrying Ms. Bergman after she prevailed in her § 2255 motion to vacate her conviction. Ms. Bergman had been represented by someone who turned out not to be a lawyer. By the time she won she had served her prison term and started her supervised release. The district court refused to set a date for a new trial. The 10th first decided 18 U.S.C. § 3731 gave the government the right to appeal the district court's decision. The lower court's refusal to set a trial date was the equivalent of a dismissal of the indictment, which is appealable under § 3731. With respect to the merits, some times habeas relief may include prohibition on retrial, for example, if: there was insufficient evidence; the constitutional speedy trial right was violated; the relevant statute was unconstitutional;, there was no jurisdiction; or retrial could not be fair even with the most competent counsel because so much evidence had been lost. But here the district court's relief was too attenuated from the right violated. The presumptively appropriate relief for an ineffective assistance claim is a new trial and the district court mentioned nothing that would overcome that presumption. Even if Ms. Bergman had completed her entire sentence, a retrial would be okay. There might very well be a due process prohibition against any more punishment, but the government could seek a conviction anyway.