August 15, 2015
"The Circuit Split on Johnson Retroactivity"
The title of this post is the headline of this effective new Casetext analysis of the intricate lower-court legal story already emerging in the wake of the Supreme Court's big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness. Authored by Leah Litman, the full piece merits a full read, and here is how it gets started:
In Johnson v. United States, the Supreme Court held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Defendants therefore can no longer be sentenced under the residual clause to a 15-year mandatory minimum term of imprisonment. But what about defendants who have already been sentenced under ACCA’s residual clause? I predicted in April, before Johnson was decided, that determining who can be resentenced in light of Johnson would be fraught with difficulties. The courts of appeals have begun to sort through this question, and I’ll highlight one such case in this post.
In In re Rivero, the Eleventh Circuit purported to decide an important question that affects who can be resentenced in light of Johnson — namely, whether the Supreme Court has made Johnson retroactive. Generally, new rules of constitutional law do not apply to convictions that have become final. But certain “retroactive” rules apply to convictions that have become final; prisoners can raise claims that are based on retroactive rules in post-conviction review — review that occurs after a defendant’s conviction has become final. If a prisoner has already filed one petition for post-conviction review, he may file a second or successive petition for post-conviction review only if the Supreme Court has made a rule retroactive (as opposed to a court of appeals or district court doing so).
I said that the Eleventh Circuit “purported” to decide whether the Supreme Court has made Johnson retroactive because the Eleventh Circuit’s decision is a bit quirky. Most importantly, the defendant wasn’t actually sentenced under ACCA — he was sentenced under an analogous provision of the Sentencing Guidelines (the “career-offender Guideline”). But the Eleventh Circuit “assumed” that Johnson applied to the career-offender Guideline and that the career-offender Guideline was therefore unconstitutional. Working off that assumption, the Eleventh Circuit went out of its way to disagree with the Seventh Circuit on whether the Supreme Court has made Johnson retroactive.
Rivero has thus created a potentially unnecessary circuit split, as well as some uncertainty about who can be resentenced in light of Johnson. I’ll offer some thoughts on how narrowly or broadly Rivero can be read. (Spoiler: I think it should be read pretty narrowly.)
Some prior related posts:
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- What does Johnson mean for the past, present and future of the career offender guidelines?
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import
- Seventh Circuit authorizes successive 2255 attack on ACCA sentence based on Johnson
- Split Eleventh Circuit panel splits from Seventh Circuit approach on Johnson retroactivity
August 15, 2015 at 12:35 PM | Permalink