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March 14, 2017

Split en banc Eleventh Circuit writes at length restricting habeas authority in ACCA case

The Eleventh Circuit has a massive new en banc opinion about federal habeas law in McCarthan v. Director of Goodwill Industries-Suncoast, Inc., No. 12-14989 (11th Cir. March 14, 2017) (available here). The start of the majority opinion in McCarthan, which was authored by Judge Willaim Pryor, should provide enough context for interested readers to figure out why this McCarthan decision engendered a bunch of concurring and dissenting opinions. Here is the start of a whole set of opinions that together runs nearly 200 pages:

This appeal requires us to decide whether a change in caselaw entitles a federal prisoner to an additional round of collateral review of his sentence.  Congress gives a federal prisoner like Dan McCarthan one opportunity to move to vacate his sentence unless that remedy is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).  When McCarthan pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), he understood that the district court would enhance his sentence under the Armed Career Criminal Act, id. § 924(e).  He did not appeal that sentence.  When McCarthan later moved to vacate his sentence, he again said nothing about the enhancement. After foregoing those opportunities to complain about the enhancement of his sentence, McCarthan petitioned for a writ of habeas corpus.  McCarthan argues that his earlier motion to vacate was inadequate to test his objection to his sentence enhancement because our caselaw about the Armed Career Criminal Act has changed. But because the motion to vacate gave McCarthan an opportunity to challenge his sentence enhancement, his remedy was not inadequate or ineffective to test the legality of his sentence, regardless of any later change in caselaw.

For eighteen years, our Court has maintained that a change in caselaw may trigger an additional round of collateral review, see Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), but our precedents have ignored the text of the statute. As we struggled to apply our precedents, we employed a five-factor test and granted relief only twice.  See Mackey v. Warden, FCC Coleman-Medium, 739 F.3d 657 (11th Cir. 2014); Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013).  Because our precedents have failed to adhere to the text of section 2255(e), have not incurred significant reliance interests, and have proved unworkable, today we overrule them.  We join the Tenth Circuit in applying the law as Congress wrote it, see Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.), and hold that a change in caselaw does not make a motion to vacate a prisoner’s sentence “inadequate or ineffective to test the legality of his detention,” 28 U.S.C. § 2255(e).  We affirm the dismissal of McCarthan’s petition for a writ of habeas corpus.

March 14, 2017 at 06:24 PM | Permalink


@LeahLitman I wrote about this issue in @michlawreview online; for my critique of Judge Gorsuch's opinion, see: http://michiganlawreview.org/wp-content/uploads/2017/02/115MIchLRevOnline67_Litman.pdf

[might be of interest, along with the judge here being on a future SCOTUS short list too]

Posted by: Joe | Mar 14, 2017 6:46:57 PM

ETA: The argument here is the opinion here is using Gorsuch's logic. Again, see her twitter feed.

Posted by: Joe | Mar 14, 2017 6:49:49 PM

Another screw the defendant opinion from a screw the defendant court.

Posted by: Dave | Mar 14, 2017 8:43:15 PM

I'd love to see summaries of the concurring and dissenting opinions. This opinion is obviously very harsh towards defendants but it's applying AEDPA, which is unarguably harsh towards defendants (unless you believe that it was simply incorporating the previous case law, like Teague, rather than modifying it).

As a practical matter, I do think there's a substantive difference between cases where the case law didn't clearly support the argument (but you could still raise it as a case of first impression) and cases where the case law contradicted the argument. In the latter case, I don't think an appeal would be adequate to test the legality of the detention since it would just be affirmed based on prior precedent.

But let's not kid ourselves. AEDPA is designed to drastically limit Habeas rights. The Supreme Court routinely summarily reverses courts that don't get this message. I wouldn't say the majority is wrong in this case.

Posted by: Erik M | Mar 15, 2017 8:41:20 AM

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