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June 5, 2018
Guest post: "The Eleventh Circuit’s Take On Handling The Wave of Dimaya-Related Litigation"
A helpful reader alerted me to an order recently issued by the Eleventh Circuit concerning how it wished to handle prisoner litigation in the wake of the Supreme Court's big recent Dimaya vagueness ruling. In response, I reached out to the academic rock-star who comes to mind in conjunction with federal habeas litigation, Leah Litman, as she was kind enough to write up this terrific guest post:
In the wake of Sessions v. Dimaya, at least one court of appeals has changed its practice from the post-Johnson days, and happily so. Even better, that court is the U.S. Court of Appeals for the Eleventh Circuit.
By way of background: Dimaya, like Johnson before it, immediately precipitated a wave of resentencing requests by prisoners seeing to have their sentences corrected in light of the decision. Some of these prisoners were sentenced under statutes that incorporate section 16(b); others were sentenced under statutes that merely resemble section 16(b) (sometimes resembling section 16(b) in every possible way, such as section 924(c)). Some of these prisoners are seeking to file their first section 2255 motion; others seeking permission to file a second or successive section 2255 motion.
In a post for the Harvard Law Review blog, I wrote about some of the obstacles that prisoners in these situations will face. Prisoners seeking to file second or successive 2255 motions face significantly more obstacles than prisoners seeking to file their initial section 2255 motions. For example, prisoners seeking to file second or successive 2255 motions have to obtain authorization from a court of appeals before they can file in the district court. And to obtain that authorization, prisoners have to show not only that the decision on which they are relying is retroactive, but that the Supreme Court has made it retroactive. By contrast, prisoners seeking to file their initial section 2255 motions have to show only that the decision on which they are relying is retroactive.
In the post-Johnson litigation, the U.S. Court of Appeals for the Eleventh Circuit adopted an approach under which it would adjudicate all section 2255 motions relying on Johnson. It maintained that approach even after the Supreme Court had granted certiorari in Welch to decide whether Johnson is retroactive (the Court likely granted certiorari in Welch just to make Johnson retroactive). It also maintained that same approach after the Court granted certiorari in Beckles to decide whether an analogous provision in the U.S. Sentencing Guidelines was also unconstitutionally void for vagueness.
The Eleventh Circuit’s case-management decision was fairly high stakes, as I explained in this essay in the Northwestern Law Review with Shakeer Rahman and in this Take Care post with Lark Turner. For one thing, processing defendant’s initial section 2255 motions would push defendants’ cases toward second or successive 2255 motions, at which the obstacles to recovery would be greater. Processing so many section 2255 motions in short order also risked losing cases in the fray, particularly given that defendants have no constitutional right to counsel in their section 2255 motions. Moreover, the Eleventh Circuit had also interpreted section 2244 to require it to dismiss any claim in a second or successive 2255 motion that had been presented in a previous petition. The Eleventh Circuit’s practice was also contrary to the other circuits: In In re Embry, the U.S. Court of Appeals for the Sixth Circuit, in a decision by Judge Sutton, explained why holding cases in abeyance of Beckles made the most sense. Other courts of appeals did the same.
In the wake of Dimaya, the U.S. Court of Appeals for the Eleventh Circuit has brought its practices into line with other circuits. The Eleventh Circuit issued an order (“General Order 43”) in which it ordered all second or successive 2255 motions involving section 924(c) to be held in abeyance for the Eleventh Circuit’s decision in Ovalles v. United States. The Eleventh Circuit took Ovalles en banc to decide whether section 924(c) is unconstitutionally void for vagueness in light of Dimaya (the court ordered briefing on whether courts must use the categorical approach to interpret section 924(c), but General Order 43 recognizes the court will decide the constitutionality of section 924(c) as part of the case). Thus, Ovalles is to Dimaya as Beckles was to Johnson: Both cases will or would decide whether an analogous provision is unconstitutionally vague in light of the preceding Supreme Court decision. But whereas the Eleventh Circuit refused to hold cases in abeyance for Beckles, it is doing so for Ovalles.
I am not exactly optimistic that the Eleventh Circuit is going to invalidate section 924(c) in light of Dimaya. I think the Eleventh Circuit is likely to hold that courts need not use the categorical approach when interpreting section 924(c), and distinguish section 924(c) from 16(b) on that basis.
Nonetheless, I think a rare kudos is appropriate here for the Eleventh Circuit’s decision in General Order 43. By electing to hold cases for Ovalles, the Eleventh Circuit is avoiding unnecessary duplication in litigation, which would waste everyone’s (the courts, public defenders, and litigants) time. It is also avoiding generating a slew of unfavorable precedents for defendants: In the wake of Johnson, the Eleventh Circuit disposed of many Guidelines cases by holding that the defendant’s prior convictions qualified as violent felonies under the enumerated offense or element of force clauses, even assuming the Guideline’s residual clause was vague. Doing so ensured that the court’s decisions would be insulated from having to go through another round of review in the event the Supreme Court ultimately held the Guideline unconstitutionally vague. But it also generated a ton of unfavorable precedent to the defendants, without argument and even without full briefing, given that that is how courts of appeals dispose of requests to file second or successive motions. By changing course and holding cases for Ovalles, the Eleventh Circuit is avoiding repeating the same error. And that’s something, these days.
June 5, 2018 at 12:36 PM | Permalink
Question for Prof. Litman. Did this Eleventh Circuit decision in General Order 43 increase or decrease lawyer procedures and hours of work?
Posted by: David Behar | Jun 6, 2018 4:50:25 AM
If the difference between ACCA's residual clause and 16(b) was slight, the difference between 16(b) and 924(c)(3)(B) is microscopic. And while ACCA and 16(b) are sentencing/deportation provisions, 924(c)(3)(B) defines an offense, where the vagueness doctrine has greater constitutional force. Hard to understand why efforts to distinguish 924(c) are being taken seriously. I guess it's all which side of the v you're on
Posted by: RW | Jun 7, 2018 12:09:04 PM
The key difference, RW, is in one case (16(b)), you are looking at a past crime, in another case you are looking at a current crime. I think this is a not-frivolous distinction, though I am still moved by vagueness arguments in this and many other settings involving severe criminal laws. I think due process should demand clarity, and this stuff clearly ain't clear.
Posted by: Doug B. | Jun 7, 2018 4:55:45 PM
Certainly, you'd fix the vagueness problem if the jury decided the risk of injury associated with the defendant's conduct. And the idea that the risk of injury should be decided by a jury is non-frivolous on the basis of the statutory text, I suppose, although you'd have to explain what they meant by "by its nature." More to the point, though, the categorical approach is required for 924 in every circuit. The fact that the residual clause has been held unclear doesn't provide an intellectually honest reason to change that conclusion.
And if we are still using the categorical approach, I can't see what difference it would make that we're applying it to the instant statutory offense. Indeed, the you'd have stronger vagueness concerns in defining a substantive offense than a sentencing provision, wouldn't you?
Posted by: RW | Jun 8, 2018 1:29:19 PM
Good day all,
I have a question in regards to all the talk surrounding Dimaya. What avenue is available to preserve the decision with Dimaya if the prisoner has already utilized their direct appeal, 2255, request for COA (denied), and submitted also to the Supreme Court (denied, too). Curious especially since the Supreme Court has YET to decide if Dimaya will be retroactive. Thank you!
Posted by: Adrianna Guzman | Jun 20, 2018 12:45:06 PM