Resume

If you’re not an attorney, credentials be confusing.  Here’s why I think my education and experience qualify me to handle your appeal or support you with complex issues at trial:

1)  Vanderbilt University Law School is ranked #16 in the nation.  Getting in is competitive; getting out alive is a killer.  The two best schools in Florida (UF and FSU, of course) are ranked around 48-50.  In my experience the best lawyers from any school are great, but the rankings do mean something.

2)  I learned criminal procedure (and especially federal habeas corpus) from Professor Nancy King, who literally writes the book on the subject.  I also got the (as in, "the only") A+ in her criminal procedure class my term.  We’ve co-authored an article on federal habeas corpus for Professor Douglas Berman’s  academic journal, The Federal Sentencing Reporter.

3)  For five years, I worked for federal judges in extremely demanding federal judicial clerkships.  At the trial level and on appeal, my job was to look at both sides, figure out who was right, and draft the opinion for my bosses.  Not only did I get to hang around the smartest, most accomplished jurists, I got to learn how judges make decisions, and see what works and what doesn’t.  Hint:  many attorneys are wrong about what’s actually persuasive to a judge.

4)  I worked in federal courts responsible for six states.  Each state system is different, but each is subject to the Constitution of the United States and other federal laws.  Now that I practice primarily in Florida, I use my experience to go beyond what the law is now, and argue what it should be, based on good ideas from other jurisdictions.  I also have a good sense of when states are ignoring federal law.

5)  My work in criminal procedure has been recognized by Bloomberg’s Bureau of National Affairs, for whom I sit on the advisory board of the Criminal Law Reporter.

6)  I continue to publish articles on cutting edge issues several times each year.

7)  Last, but certainly not least, I’ve been fortunate enough to work closely with Fox and Loquasto, P.A., a prestige boutique appellate firm with which I enjoy an “of counsel” relationship.  Susan Fox in the Orlando office has been an invaluable source of wisdom.

Look, bragging is not my favorite thing to do.  I find it distasteful.  As you make your decision, I advise you to obtain credentials from everyone you consider and compare them.

If you’re looking for an attorney, I urge you to find one you’re comfortable with.  There are other very good attorneys out there, and if I’m not right for you I’ll try to get you to someone else you can trust.  You can visit the web site of the Florida Bar to view an attorney’s profile, including their disciplinary history and board certification information.  

Gray Richard Proctor

EDUCATION

Vanderbilt University Law School, Nashville, TN                         

 J.D.:  2007  Honors:  Deans List; Vanderbilt Scholastic Excellence Award, Criminal Procedure 

University of New England, Armidale, New South Wales, Australia             

M.A., Linguistics:  2003                                  

University of Texas, Dallas, TX                                                       

 B.S., Economics and Finance, with honors:  1998

                                                                              

EXPERIENCE

Law Office of Gray R. Proctor, Orlando, FL                                                            2012-current

Solo Practitioner:  Single-attorney law office focused on civil and criminal appeals.

United States Court of Appeals for the Fourth Circuit, Richmond, VA   2010-2012

Staff Attorney:  Draft memoranda and opinions for three-judge panels in appeals from federal courts in Virginia, West Virginia, Maryland, North Carolina, and South Carolina.

University of Richmond Law School, Richmond, VA                                              2008-2011

Clinical Legal Writing Volunteer Instructor:  Provide extensive feedback and instruction on legal writing to students in family law clinic. 

 U.S. District Court, Eastern District of Virginia, Richmond, VA              2008-2010

Law Clerk:  Draft opinions and orders in postconviction and prisoner civil rights cases in the Richmond Division of the U.S. District Court for the Eastern District of Virginia. 

U. S. District Court, Southern District of Texas, Corpus Christi, TX                    2007-2008

Law Clerk:  Draft opinions and orders for the Honorable Brian Owsley. 

Vanderbilt University Criminal Representation Clinic, Nashville, TN              2006

Specially Admitted Attorney:  Lead student counsel for death row inmate G’Dongalay Berry’s successful petition for state habeas relief. 

Professor Nancy King, Vanderbilt University Law School, Nashville, TN           2005-2006

Research Assistant:  Research, analyze, and code around 800 non-capital and 130 capital habeas proceeding for Professor King’s empirical study of habeas litigation in federal district courts. 

PUBLICATIONS AND PRESENTATIONS

Gray Proctor, “Old Rule, Partially Retroactive, and No Remedy:  Why Hurst Won’t Help Many on Florida’s Death Row,” Federal Sentencing Reporter (Forthcoming April 2016).

Gray Proctor, “Retroactivity and the Uncertain Application of Johnson v. United States:  Is the Rule ‘Constitutional’ on Post-Conviction Review?” Bloomberg BNA Criminal Law Reporter (July 1, 2015).

Gray Proctor, “The New Role of Federal Courts in Guaranteeing the Right to Effective Assistance of Counsel,” Florida Bar Journal (July 2015).

Gray Proctor, “What State Criminal Practitioners Should Know about Federal Habeas Corpus,” The Record (Journal of the Appellate Practice Section, Summer 2014).

Gray Proctor, “Whiteside v. United States:  Using 28 U.S.C. § 2255 to Correct Serious Guidelines Errors Based on New Law,” BNA Bloomberg Criminal Reporter (April 30, 2014).

Gray Proctor, “Christmas Comes Early in the Eleventh Circuit:  Using Bryant and 28 U.S.C. § 2241 When Section 2255 is Inadequate to Challenge Illegally Enhanced Sentences,” BNA Bloomberg Criminal Law Reporter (January 22, 2014).

 Gray Proctor, “Attacking Aggravating Prior Convictions in Federal Habeas: Using      Lackawanna and Daniels for . . . Practically Anything?,” BNA Bloomberg Criminal Law Reporter (December 4, 2013).

Gray Proctor, “The Supreme Court’s Ruling in Chaidez v. United States:  Averting a Flood of Padilla Litigation by Former Prisoners,” BNA Bloomberg Criminal Reporter (May 22, 2013).

Gray Proctor, “Habeas Review under 28 U.S.C. § 2254 after Martinez v. Ryan:  Federalization and Forum Shopping for Ineffective Assistance of Counsel Claims,” BNA Bloomberg Criminal Law Reporter (December 5, 2012).

 Speaker and Panelist, “The ‘Solo Practitioner’:  Pro Se Litigants and Their Obstacles to Justice,” Fordham Law School (January 25, 2011). 

Gray Proctor and Nancy King, “Post-PadillaPadilla’s Puzzles for Review in State and Federal Courts,” 23 Fed. Sent. R. 239 (2011).

Margaret Love and Gray Proctor, “Report on Deferred Adjudication Schemes in the States,” January 2011.  (Pew grant project)

Gray Proctor, “Ngo Excuses:  Proving, Rebutting, and Excusing Exhaustion in Prisoner Suits after Woodford v. Ngo and Jones v. Bock,” 31 Hamline L. Rev. 471 (2008).

ORGANIZATIONAL POSITIONS

Assistant Editor, Articles and Pro Se Handbook, Florida Bar Appellate Practice Committee.

Advisory Board, BNA Bloomberg Criminal Law Reporter. 


NOTE:  I HAVE DISCONTINUED BLOGGING.  Frankly, at the end of the week it’s just too easy to skip, and anyway I prefer to write longer articles for publication.  

Happy New Year!

Thanks so much to all my clients and colleagues for making 2014 such a memorable year.

Congratulations UF and Stetson moot court winners!

The UF and Stetson teams advanced to the finals in New York.  Thanks for the opportunity to participate as a judge to the UF moot court organization.

Thank you, Orlando!

Thanks so much for the honor of being selected as a Rising Star in Orlando’s legal community.  Here’s to a good start and a long future!  http://orlandostylemagazine.com/gray-proctor/

Sentencing Commission decides new drug guidelines will apply retroactively!

The April 2014 guidelines changes WILL be applied retroactively, which means that many federal defendants will be eligible for a sentence reduction soon!

The United States Sentencing Commission voted unanimously today at a public meeting to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively, meaning that many offenders currently in prison could be eligible for reduced sentences beginning November 2015.

The Commission voted unanimously in April to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types, which may mean lower sentences for most drug offenders going forward. Today the Commission decided that judges could extend that reduction to offenders currently in prison, but with a requirement that reduced sentences cannot take effect until November 1, 2015. Under the guidelines, no offender would be released unless a judge reviews the case to determine whether a reduced sentence poses a risk to public safety and is otherwise appropriate.

“This amendment received unanimous support from Commissioners because it is a measured approach,” said Judge Patti B. Saris, chair of the Commission. “It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety.”

Congress has until November 1, 2014 to disapprove the amendment to reduce drug guidelines. Should Congress choose to let the guideline reductions stand, courts could then begin considering petitions from prisoners for sentence reductions, but no prisoners could be released pursuant to those reductions before November 1, 2015.

The Sorry State of Appointed Representation in Florida Death Penalty Cases

In Lugo v. Sec’y, Dept. of Corr., the Eleventh Circuit had a lot to say about the attorneys Florida appoints  for postconviction review in capital cases.  According to its analysis, fully 8% of capital defendants in Florida filed Section 2254 petitions (federal habeas corpus) after the statute of limitations expired!  

In Lugo’s case, his appointed attorney also extorted money from him before eventually filing his state postconviction motion 12 days after the 1-year federal limitations expired.  (The state motion was timely because there is a two-year limitations period for state PCR motions).  Thus, the state motion did not stop the federal statute of limitations from running (that is, “toll” the statute of limitations) because the time had already expired.  

Evidentiary Hearing Set in Rigg v. State

The Southern District of Florida has granted an evidentiary hearing to my client Franz Rigg.  Fewer than .4% of all federal habeas cases filed result in an evidentiary hearing according to the study by Nancy King of Vanderbilt, whom I was fortunate enough to have the oppportunity to work for (see page 36 here:  https://www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf).  I commend the Southern District for its willingness to give Mr. Rigg his day in court.

Notable Recent Cases in the 5th District Court of Appeals

In Boaz v. State, the 5th DCA reversed on the trial court’s failure to conduct a Nelson hearing (to establish grounds to discharge and replace counsel after deficient performance); failure to hold hearing was error where defendant had alleged specific instances of deficient error, and “open and voluntary” nature of guilty plea could not render error harmless. http://www.5dca.org/Opinions/Opin2014/032414/5D12-4485.op.pdf

Note Sean Wagner’s interesting commentary on exploiting the Nelson/Faretta procedures to replace counsel even though counsel’s performance was not deficient here: http://floridacriminaldefenselawyer.blogspot.com/2011/08/you-aint-working-in-my-best-interest.html


In Bainter v. State, the 5th DCA reversed the denial of a motion to suppress, finding that the defendant’s subjective reasonable expectation of privacy gave 4th Amendment right to not have police enter fenced property posted with “No Trespassing” signs through open gate. http://www.5dca.org/Opinions/Opin2014/032414/5D13-602.op.pdf


In Collins v. State, the 5th reversed based on prosecutorial misconduct during closing argument.  Although counsel did not object at trial, the unsupported assertion that the defendant had pressured the victim to testify favorably rose to the level of fundamental error, and warranted reversal despite counsel’s failure to preserve the error. http://www.5dca.org/Opinions/Opin2014/032414/5D13-637%20op.pdf

Pro se appellant Jason Scott Downs won a nice procedural victory for postconviction review.  The 5th DCA found that a recent amendment to Rule 3.850 (here, the two-year limitations period added June 30, 2011) did not apply retroactively, but only began to run on the effective date ; thus, Mr. Downs’s petition challenging his 2001 conviction was timely filed because the limitations period began to run on June 30, 2011, not the date of his conviction and sentence. http://www.5dca.org/Opinions/Opin2014/032414/5D13-2600.op.pdf

In Heilman, the 5th DCA held that, as a matter of statutory interpretation, a corrections officer was entitled to assert the stand-your-ground defense with respect to an assault charge based on an altercation with an inmate. Note that, because stand your ground is a defense to prosecution rather than merely liability, review here came on a writ of prohibition directly from the pretrial order denying the defendant’s defense. http://www.5dca.org/Opinions/Opin2014/032414/5D13-3940.op.pdf

In Medina, the 5th DCA reversed a summary denial of a Rule 3.801 motion for jail credit because the trial court did not give Mr. Medina an opportunity to amend the facially insufficient motion. http://www.5dca.org/Opinions/Opin2014/032414/5D13-4140.op.pdf


In Mann v. State, the 5th reversed on a jury instruction issue where the state did not establish harmlessness of erroneous instructions.  Here, where the defendant was charged with stabbing the victim and the victim contended that the defendant had attacked his wifes cat, the court erred by giving a jury instruction on whether victims use of force was justified and thereby creating an improper presumption that the victim was provoked.  Victim was not on trial, rendering his right to use force irrevelvant; moreover, other jury instructions adequately conveyed limits on defendant’s invocation of the right to self defense.  http://www.5dca.org/Opinions/Opin2014/031714/5D12-1478.op.pdf

In Melendez v. State, the 5th vacated two of defendants three convictions.  The conviction for grand theft was dismissed on double jeopardy grounds owing to the conviction for trafficking in stolen goods; because the objection had not been raised at trial, the lesser conviction (3d degree felony grand theft) was vacated.  A robbery conviction was also vacated where trial court permitted the prosecution to exceed the necessary scope of cross-examination and present testimony from detectives regarding confession of non-testifying co-defendant; the error was not harmless based on the circumstantial and not compelling nature of the other evidence.

In Moore v. State of Florida, up on certiorari review of the trial courts order denying a motion to depose members of a Child Protection Team, success was achieved despite dismissal of the petition.  The issue here is the unofficial practice of the Ninth Circuit in requiring a court order for discovery from the Department of Children and Families due to the confidentiality concerns.  Observing that no such requirement existed in the law, the 5th DCA held that the defendant nevertheless had not established uncurable prejudice because the trial court had not issued a final order denying the discovery.  The 5th did, however, strongly encourage the lower court to reconsider its position that written interrogatories should be submitted along with such a motion, or in the alternative grant the motion for deposition after reviewing the interrogatories.  http://www.5dca.org/Opinions/Opin2014/031714/5D13-2555.op.pdf

In the unfavorable decision Hampton v. State, the 5th receded from its earlier holding in Davis v. State, 95 So. 3d 340 (Fla. 5th DCA 2012) (holding that conviction for conspiracy to traffic in drugs required proof that the conspirators intended to commit the same act specific illegal act, precluding liability for a single buy-sell transaction).  The Court explained that the cases it relied on in Davis related to charges for conspiracy to purchase, not the alternative-conduct charge of trafficking. Thus, a single buy-sell transaction established a mutual conspiracy to traffic drugs.  http://www.5dca.org/Opinions/Opin2014/031014/5D12-2115.op.pdf

The Defendant in Simplice v. State was able to obtain resentencing before a different judge where the original judge participated in plea discussions, offering a 15.25 year term; upon defendants conviction at trial, the judge imposed a total sentence of 40 years.  This 262% increase (which was not explained by the court) created a presumption of vindictiveness which the state had failed to rebut.  Because vindictiveness is a fundamental error, trial counsel’s failure to raise the issue did not forfeit appellate review.  http://www.5dca.org/Opinions/Opin2014/031014/5D12-4371.op.pdf


The 5th reversed on double jeopardy grounds convictions for kidnapping and false imprisonment committed during the same criminal episode in Jones v. State.  http://www.5dca.org/Opinions/Opin2014/030314/5D13-30.op.pdf


In Wahid v. State, the 5th reversed a forfeiture award with respect to certain vehicles, holding that forfeiture was not appropriate because (1) property connected to or derived from proceeds of violations of gambling laws was not necessarily forfeitable; and, (2) the state had not shown that the vehicles were used as instrumentalities in the commission of a felony.  http://www.5dca.org/Opinions/Opin2014/030314/5D13-1670.op.pdf

In Pylant v. State, the 5th reversed a summary denial of a 3.850 motion; the trial court should have held a hearing on the issue of whether counsel affirmatively misadvised defendant that, on sentence for violation of parole, the DOC would give credit for 547 days of gain time.  The acknowledgment at a plea colloquy that no promises have been made is insufficient to conclusively rebut a claim of affirmative misadvice. http://www.5dca.org/Opinions/Opin2014/030314/5D13-3835.op.pdf

In Dawes v. State, the 5th affirmed the denial of a motion to dismiss based on failure to timely charge a defendant under the Interstate Agreement on Detainers Act (IADA); defendants one-year Massachustts sentence, served in a county jail, was not a penal or correctional institution under the Act, rendering the 180-day period in the Act inapplicable.  http://www.5dca.org/Opinions/Opin2014/022414/5D12-3239.op.pdf


In Reidy v. State, the 5th remanded a 3.850 motion for further proceedings after summary dismissal of claim that attorney incorrectly informed petitioner that he would lose advantage of first and last closing argument if he testified (under the law at the time, defendants were entitled to first and last closing argument unless they presented evidence other than their own testimony) and that his trial attorney committed ineffective assistance by opening the door to otherwise inadmissible hearsay statements.  http://www.5dca.org/Opinions/Opin2014/022414/5D13-154.op.pdf

In Potts v. State, the 5th held that the lower court erred in revoking probation when, after the initial sentence was pronounced, it added a requirement that defendant complete a drug program, then revoked probation on the illegally added condition.  http://www.5dca.org/Opinions/Opin2014/022414/5D13-308.op.pdf


In Barker v. State, a writ of habeas corpus was granted and the 5th ordered the immediate release of a prisoner who had been sentenced to a probationary split sentence but did not receive credit for incarceration on the initial sentence; "A defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation unless such credit is waived. Mann v. State, 109 So. 3d 1202, 1203 (Fla. 5th DCA 2013)"

http://www.5dca.org/Opinions/Opin2014/022414/5D14-341.op.pdf

 

Catching Up after a Hiatus

First, cases and filings have been updated - check the “legal resources” page.  New filings include a motion for a certificate of appealability to the Eleventh Circuit and a Rule 3.850 motion.  

Second, I am part of the team updating the criminal appeals and postconviction chapters of the Appellate Practice Section’s Pro Se handbook.  This extremely rewarding work will hopefully prove a useful resource to anyone trying to get a handle on the procedural issues they face.

Third, I have been researching the issue of “unbundled” legal services across the country.  “Unbundled” simply means that the attorney provides some level of service short of full representation.  Examples include consultations, research and writing assistance, obtaining documents, and even ghost-writing filings.  Many of my clients either do not have the funds to pay for full representation or do not need or want full representation.  Florida allows this practice (see here), but other jurisdictions differ.  To me, attorneys have got to have the power to shape their representation to the resources of their clients.  This is especially important in the context of postconviction review, where defendants generally lack any income but need help to bring their claims.

Fourth, there have been so many new developments in prisoner’s rights, federal sentencing issues, and Florida criminal law to watch.  I generally do not post links to specific articles (if I did that, I would have to blog every day!), but there are a few that I want to share, in no particular order:

Attorney General Holder testified before the U.S. Sentencing Commission  

Professor and sentencing expert Douglas Berman argues unconstitutionality of 15-year sentence for possession of ammunition by a felon

Conservatives get behind sentencing reform

The Florida Supreme Court hears arguments on whether Miller (prohibiting automatic life without parole for juveniles) applies retroactively

The Ninth Circuit rules that lack of resources is a defense to liability in prisoner suits under Section 1983

Florida conservatives get behind medical marijuana

The Onion publishes a tongue-in-cheek article about the failure of prison systems to rehabilitate

The Supreme Court hears argument on Florida’s implementation of the Atkins decision (forbidding execution of the mentally retarded)

The Supreme Court grants certiorari in a prisoner civil rights case involving religious freedom

The Supreme Court rules that the enhancement for sale of drugs resulting in death cannot be applied unless the drugs sold are a but-for cause of the death (not merely contributing)

Politico published this article on the “abysmal” performances of private prisons

The U.S. Department of Justice asks for help identifying good candidates for pardons and clemency

Senior United States District Judge Michael Ponsor speaks about the Smarter Sentencing Act and “prisoners I lose sleep over”

AG Holder urges states to stop disenfranchising convicted felons

Journalist Topher Sanders writes an investigative piece about how Jacksonville-area prosecutors routinely threaten juveniles with adult charges to induce guilty pleas

Finally, a 2241 Remedy: Eleventh Circuit decides Bryant v. Warden

Christmas came a day early for anyone whose enhancement would not have been legal under Begay.

On December 24, 2013, the United States Court of Appeals for the Eleventh Circuit decided Bryant v. Warden, FCC Coleman. Mr. Bryant had challenged his enhanced sentence on the basis that his state-court coviction for illegally carrying a concealed firearm was not a violent felony for the purposes of 18 U.S.C. S 924(e). Until the Supreme Court decided Begay v. United States1 in 2008, the Eleventh Circuit’s controlling precedent foreclosed Mr. Bryant’s claim. At that point, due to the age of his federal conviction, and the fact that he had already filed a postconviction motion, Mr. Bryant could not proceed under 28 U.S.C. S 2255. He therefore invoked 28 U.S.C. 2241, arguing that Section 2255 was not adequate to test his continued detention. Reversing the district court, the Eleventh Circuit held that Mr. Bryant’s claims could proceed, and granted relief.

Although its holding is limited to sentences over the statutory maximum and does not extend to Guidelines error, the Eleventh Circuit’s decision is important because the circuits have split on whether Section 2241 is available to challenge a sentence, or is limited to convictions for acts that are no longer criminal. However, because Section 2241 convictions are filed in the district of incarceration (rather than the district of conviction), Bryant’s availability depends on whether the defendant is incarcerated in Florida, Georgia, or Alabama.

Bottom line:  if you're in the Eleventh Circuit, and an enhancement would not be legal under Begay but controlling circuit precedent before Begay established that the enhancement applied, you need to file a 2241.


UPDATE:  My article on this topic from the BNA/Bloomberg Criminal Law Reporter is available here.


November Round-Up: New Publication and Case Activity

November (and October) have been busy months.  The most significant filings from my office lately have been:

Belated motion for postconviction relief - Brought on by a subsequent conviction, the purpose of this motion is to overturn the convictions that made the client eligible for a prison releasee reoffender (PRR) sentence.  The record revealed serious problems with the way the case was transferred from juvenile court to circuit court.

Rule 9.141 motion/Habeas Petition - Another belated effort, this motion focuses on the nonexistent crime of which Mark Kohut was convicted and on the ambiguity of the jury verdict with regard to whether he personally used a weapon, as required to enhance a conviction under 775.087, Fla. Stat.

Objections to Report and Recommendation to Deny Petition for Habeas Corpus - Basically an appeal of the Magistrate Judge's decision, this was the last chance to attempt to convince the federal habeas court that the 2254 Motion deserves an evidentiary hearing.

I'm also very pleased to announce the publication of "Attacking Aggravating Prior Convictions in Federal Habeas: Using Lackawanna and Daniels for . . . Practically Anything?" in next week's Bloomberg/BNA Criminal Law Reporter.  I hope to have an opportunity to challenge prior aggravating convictions used to enhance a subsequent sentence in the near future, and hopefully the idea will prove useful to someone else as well.  Bottom line:  if you didn't have postconviction counsel for your Rule 3.850 motion, your rule 3.800 motion, or your federal habeas proceedings (or Section 2255 proceedings for federal defendants), those convictions might be susceptible to challenge when used to enhence a subsequent sentence.

© Gray Proctor 2016