« "Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution" | Main | Lots of interesting post-Booker guideline talk as federal defendant gets another sentencing win from SCOTUS »

April 20, 2016

Eleventh Circuit concurrence lists 100+ cases now made viable now that Welch clarified Johnson's retroactivity

A helpful reader altered me to a remarkable concurrence authored by Eleventh Circuit Judge Beverly Martin in In re Robinson, No. 16-11304 (11th Cir. April 19, 2016) (available here). Here is the full text of the concurrence, which serves as an explanatory preamble to a list of 110 Welch impacted cases within the circuit:

I agree that Troy Robinson cannot benefit from Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the residual clause.  I write separately to note that Mr. Robinson is one of dozens of prisoners who has tried to file similar applications based on Johnson.  Prior to yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016), all these applicants were turned away from our Court not because Johnson wouldn’t benefit them but because our Court held that Johnson could never apply in these cases. Some of those who filed applications in other courts have already been freed because they were serving an unconstitutional prison sentence.  As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson.  See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2482–83 (2005).

Although I have not taken the time to investigate the merits of these cases, below is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson.  I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications.  I have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the guidelines were mandatory together with those for which the guidelines were advisory).  I have also listed the district court in which each sentence was imposed, to the extent Federal Public Defender offices are monitoring these cases.

Because these cases all involve prisoners seeking collateral review of their prison terms, the Sixth Amendment does not provide them with a constitutional right to the assistance of counsel. I believe district judges may have discretion to appoint lawyers for these prisoners under the Criminal Justice Act, and federal defenders and private lawyers can take up their cases upon their own initiative. I hope many will.  Indeed, I cannot help but wonder if some lawyers still working through thousands of federal clemency petitions (all of which wouls seem to have limited chance of success) might reallocate some of their energies to helping Johnson/Welch claimants on this list and elsewhere throughout the country.

April 20, 2016 at 09:47 AM | Permalink


Incredible. Brava Judge Martin.

Posted by: AFPD | Apr 20, 2016 10:39:25 AM

Many, but not all, districts have adopted general orders appointing the FPD to represent clients with a possible Johnson claim.

Posted by: Anon | Apr 20, 2016 10:48:24 AM

Judge Martin, if you're reading this, congratulations on a sterling concurrence that will help many pro se prisoners! Well done indeed.

Posted by: Michael R. Levine | Apr 20, 2016 2:57:07 PM

Thank you for this. I couldn't access the list, but hope they all are informed.

Posted by: beth | Apr 20, 2016 10:00:10 PM

The link to the opinion has changed: http://media.ca11.uscourts.gov/opinions/pub/files/16-11304.order.pdf

Posted by: Anon | Apr 21, 2016 7:50:43 AM

So some of the district courts are entering a general order appointing counsel for someone who who has not asked for relief, the assistance of counsel, or may in fact be already represented by someone else. This turns the idea of who is in charge of the objectives of representation upside down.

Bringing defendants, without their consent, back to the attention of prosecutors is not always in their best interests. Especially when there may be other provable criminal activity that was forgone due to the sentence previously imposed.

Posted by: David | Apr 21, 2016 9:30:02 AM

Appointing temporary lawyers to protect a claim does not seem unreasonable to me. Obviously, you need a large enough pool of lawyers -- given the shortness of time -- to look at each of the cases and meet with their new clients to determine if the client wants to seek relief (or if keeping the original sentence makes sense in light of the potential for other charges). The client retains the right to notify the court that he/she does not want counsel (or will be hiring their own counsel) and to make the decision on whether to seek relief.

I do not see a negative consequence to appointing counsel. Until a motion for relief is filed and granted, the respective U.S. Attorney's Offices are bound by the previous plea agreement. As the Judge notes, compared to the more symbolic or politically-motivated efforts of the organized bar (e.g. the Clemency Project) that seem to want to aid prisoners obtain discretionary relief, many of these potential clients have (at least according to the Welch decision) clearly been wronged and are entitled to relief.

Posted by: tmm | Apr 21, 2016 11:32:21 AM

tmm, all very valid points except the District Court is appointing counsel for someone who never asked for it and is not entitled to it. Also, not all other criminal conduct of defendants is known to defense counsel and part of the plea agreement assuming one was entered. What is to stop the District Court from appointing me counsel even though I have not asked for counsel and I'm not entitled to counsel and may not want counsel?

Having dealt with this because of prop 36 I saw defense counsel filing petitions for sentenced three strike defendants when they never had consulted with the client because they were concerned about an untimely petition. This is not the client directing the goals of litigation. It will happen here too because of the timing requirements for such a petition and the challenge of effective communication with persons who are in prison.

Posted by: David | Apr 21, 2016 2:50:10 PM

It requires the trial judges to handle these cases properly: 1) appoint enough attorneys; 2) not instantly grant every petition filed; and 3) require confirmation within a reasonable period of time that the client wants to pursue the claim.

With these being federal cases, communication with the clients will be more difficult due to many of the clients being incarcerated outside the district of the offense. On other hand, former counsel has the obligation to send the client's file to new counsel if the client so requests. Additionally, assuming that the plea agreement did not include a section on charges that were not filed, I would hope that most AUSA's would be as forthcoming with 2255 counsel as they were with the original attorneys about the "or else" alternative to the plea agreement. I know that in state court, my general practice was to let collateral review counsel know what else we had on their clients so that the client could decide whether to risk the negative consequences if they won their collateral review case.

Of course, it would help if the Supreme Court had been clear about whether the clock started last June (the original decision on the theory that cases like Johnson are automatically retroactive even without a formal announcement that it is retroactive) or this week (when the Supreme Court officially made Johnson retroactive on the theory that even "substantive" decisions are not retroactive unless the Supreme Court expressly states that it is a substantive decision). There are arguments for both time periods (similar arguments could be made for the MIller-Montgomery duo).

Posted by: tmm | Apr 22, 2016 10:40:56 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB