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June 26, 2015
How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
After this post, I am going to take some time off-line in order to calmly and carefully read all the opinions in the big SCOTUS constitutional sentencing ruling today in Johnson v. US. (Sadly, I think it is a bit too early to get some liquid assistance in calming down, but that will change in due time.) Helpfully, Justice Scalia's opinion for the Court in Johnson is relatively short and thus it should not prove too difficult for everyone to figure out the import of the Johnson ruling for future applications of ACCA or even for future vagueness/due process Fifth Amendment constitutional jurisprudence.
But, as the title of this post is meant to highlights, I suspect it may prove quite difficult for everyone to figure out the impact of the Johnson ruling for past applications of ACCA and those currently serving long federal ACCA mandatory prison sentences. I am pretty sure vagueness ruling are considered substantive for retroactivity purposes, so even long-ago sentenced federal prisoners should at least be able to get into federal court to now bring Johnson claims. But not every federal prisoner serving an ACCA sentence has even a viable Johnson claim and I suspect most do not have what I would call a strong Johnson claim. In my mind, to have a strong Johnson claim, a defendant would have to be able to show he clearly qualified for an ACCA sentence based on and only on a triggering prior conviction that hinged on the application of the (now unconstitutional) residual clause.
That said, I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim. And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in federl prison.
I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners. In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid.
Some prior posts on Johnson and its possible impact (last two from before the opinion)
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
June 26, 2015 at 11:53 AM | Permalink
Comments
When I was incarcerated in the Bureau of Prisons for 8 years (2000 thru 2008), I saw and worked on dozens of ACCA cases. I saw many that raised my eyebrows and made me wonder. Now, many of those men will get to have their ACCA sentences vacated and get re-sentenced to shorter time.
Posted by: Jim Gormley | Jun 26, 2015 11:57:29 AM
Quick look at ussc.gov shows the folowing ACCA #s: FY2014 567, FY2013 584, FY2012 631, FY 2011 571.
Posted by: AUSA12 | Jun 26, 2015 12:24:35 PM
Doug,
What authority do you have for this assertion: "I am pretty sure vagueness ruling are considered substantive for retroactivity purposes, so even long-ago sentenced federal prisoners should at least be able to get into federal court to now bring Johnson claims"? I'm having trouble finding a post-Teague SCOTUS case so holding.
Posted by: Da Man | Jun 26, 2015 12:50:30 PM
Don't forget the identical language in the criminal history section of the U.S. Sentencing Guidelines! Who knows how many prisoners might be serving longer sentences (perhaps after being declared career offenders) based on this vague language. Career offender sentences are often longer than even ACCA sentences, and many of those sentences would have been imposed when the Guidelines were still mandatory. The Johnson opinions don't mention the Guidelines, but because the language is identical, the provisions are usually construed identically (ACCA precedents inform Guidelines decisions, and vice versa). I think it will be impossible to say that the Guideline language is not now also vague. The Sentencing Commission can change the Guidelines more easily than Congress can amend ACCA, so that may end up being the first battlefield in a post-Johnson world.
Posted by: Person | Jun 26, 2015 12:56:49 PM
I'm with Person at 12:56. My first thought was whether the Career Offender residual clause is now also void for vagueness and that would seriously increase the number of offenders involved.
Posted by: Former USPO | Jun 26, 2015 2:12:22 PM
Since the ruling sets aside the James and Sykes rulings, does this mean that people with attempted burglary convictions (as in the James case) and vehicle flight from law enforcement convictions (as in the Sykes case) (not to mention James and Sykes themselves) are no longer subject to the ACCA's mandatory minimum? Thanks in advance.
Posted by: VC | Jun 26, 2015 2:58:56 PM
The difference, though, is that beacuse the Guidelines are advisory, courts could adopt the "fix" proposed in Justice Alito's dissent, such that the focus at sentencing, say for career offender purposes, would be on the actual conduct that gave rise to the prior offense, to see if it would satisfy the residual clause. That would pose no Sixth Amendment/Apprendi problem.
Posted by: Da Man | Jun 26, 2015 3:00:42 PM
The difference, though, is that beacuse the Guidelines are advisory, courts could adopt the "fix" proposed in Justice Alito's dissent, such that the focus at sentencing, say for career offender purposes, would be on the actual conduct that gave rise to the prior offense, to see if it would satisfy the residual clause. That would pose no Sixth Amendment/Apprendi problem.
Posted by: Da Man | Jun 26, 2015 3:01:05 PM
The difference, though, is that beacuse the Guidelines are advisory, courts could adopt the "fix" proposed in Justice Alito's dissent, such that the focus at sentencing, say for career offender purposes, would be on the actual conduct that gave rise to the prior offense, to see if it would satisfy the residual clause. That would pose no Sixth Amendment/Apprendi problem.
Posted by: Da Man | Jun 26, 2015 3:01:24 PM
In response to Person: the difference, though, is that because the Guidelines are advisory, courts could adopt the "fix" proposed in Justice Alito's dissent, such that the focus at sentencing, say for career offender purposes, would be on the actual conduct that gave rise to the prior offense, to see if it would satisfy the residual clause. That would pose no Sixth Amendment/Apprendi problem.
Posted by: Da Man | Jun 26, 2015 3:02:00 PM
Sorry about the multiple repetitive posts -- browser issues persist b
Posted by: Da Man | Jun 26, 2015 3:21:32 PM
The problem with the career offender challenges using Johnson (and any other "crime of violence"-based claim), is that there have been a recent spat of challenges in the 4th, 7th, 8th, and 11th that foreclose challenges to such designations for advisory Guidelines sentences after Begay, Chambers, etc. The Court's constitutional justification for the ruling may provide relief, however, because there may be a way to craft a claim that the sentence still was issued in violation of the constitution.
Anecdotally, as a prison-based clinical supervising attorney in a federal program, there are a fair number of individuals whose sentences hinge on only three prior predicate offenses, with at least one of them only qualifying under the residual clause. It's going to be a busy year in federal postconviction work.
Posted by: Adam Stevenson | Jun 26, 2015 4:04:03 PM
Adam,
I assume you are referring to decisions foreclosing 2255 relief, not decisions foreclosing relief on direct appeal.
Da Man
Posted by: Da Man | Jun 26, 2015 4:29:18 PM
Correct, foreclosing 2255 relief because the court held that the improper advisory designation was not a violation of "law" as the Guidelines are no longer mandatory under 3553, nor a miscarriage of justice. However, the constitutional vagueness aspect may re-open that question on a new front. Johnson definitely applies to cases currently on direct appeal or whose judgements are not final.
Posted by: Adam Stevenson | Jun 26, 2015 6:09:22 PM
re: guidelines, it is not clear that guidelines CAN be void for vagueness, lots of state and federal authority to that effect but plenty of jurisdictions with no ruling.
re: 2255, even if Johnson eventually applies retroactively, second/successive and untimely movants run into the problems because the court has not yet announced it. Dodd v. United States, 545 U.S. 353, 363-66 (2005) (Stevens, J., Dissenting); Tyler v. Cain, 533 U.S. 656, 676-77, 121 S.Ct. 2478, 2490 (2001) (Breyer, J. Dissenting, joined by Stevens, Souter, Ginsberg). It may actually be better if Johnson is considered a rule of statutory interpretation, because at least some prisoners can get relief under 2241.
Posted by: Gray Proctor | Jun 29, 2015 10:14:56 PM
Will someone please suggest an attorney who is working on these cases. I would love to see if this could help reduce my husbands time. He is in McCreary USP, Kentucky.
Thank you in advance,
Amanda
Posted by: Amanda Helmick | Aug 3, 2015 12:37:12 PM
My husband is s 2 strike felon serving time in state prison he took a deal for 2 years and they used the enhancement law and added another 2 years is it the same for state and he can get the enhancement years taken off? If so how would we go about this. We're in LA California.
Posted by: Melissa Hendrickson | Aug 24, 2015 2:56:37 PM
MY HUSBAND HAS BEEN CHARGED WITH CAREER OFFENDER IS THERE A LAW IN CONGRESS TO HELP HIM AND IF SO HOW DO WE DO IT CAN HE APPLY FOR ACCA REDUCTION NOW IS THERE GOING TO BE HELP FOR THOSE INMATES PLEASE HELP ASAP LET ME KNOW WHAT TO DO THANK YOU FOR YOUR HELP,AND PATIENCE READING MY E-MAIL
Posted by: lakeisha williams | Nov 30, 2015 3:51:15 PM
My son has a 38 month federal sentance can you help him
Posted by: c ramirez | Apr 12, 2016 6:11:24 PM
My spouse was charged with the ACCA law and I'm trying to understand how the Johnson law works and does it apply to him if anybody can give me more information please feel free to email me thanks
Posted by: Glenisha Crumble | Jul 24, 2016 4:17:20 PM
Can anyone tell me how the Johnson Law works? I'm imterested in finding out for my husband who has been in prison 6 years now. Thanks any input would be appreciated.
Posted by: Nicole Walker | Aug 9, 2016 7:03:01 PM
When are they going to start releasing inmates based on the retroactivity?
Posted by: Sue | Aug 12, 2016 5:47:21 PM
I am also trying to find out who I contact to see if my husband is eligible for this he already done his time, but is in jail for violation.
Posted by: Cuba Meade | Oct 5, 2016 12:02:07 PM
how do this law work and can you email me back because i have alot of question
Posted by: cece | Nov 26, 2016 11:05:37 AM
Yes, I would like somebody to email me back pertain my brother vacate. HE was one of those inmate to be release for the Johnson Law. Who do I need to contact or write too concern my brother.
Posted by: Angie | Dec 8, 2016 1:43:19 PM
Hi I'm trying to find a lawyer to look over my boyfriends case I believe he'll get relief from the Johnson case. He's filed the 2255 for relief in November. He is currently in McCreary usp. Any advise would be much appreciated. Thank you in advance.
Posted by: Mika | Dec 25, 2016 2:41:52 AM
Amanda helmick my man is also in McCreary usp. Where are you located? I'm in Missouri
Posted by: Mika | Dec 25, 2016 2:44:32 AM
I was released 5 yes early due to Johnson and Mathes cases. I was contacted by my public defender and he filed a 2255 for me. That was in May 2016. I was released 8-30-2016. I had in over 10 yrs and that was the max. So I was a immediate release. So this is proof there is hope. If anyone needs advice or help please call me 908-801-3082
Posted by: Vernon willey | Jan 18, 2017 2:03:44 AM
Vernon willey 908-801-2082
Posted by: Vernon willey | Jan 18, 2017 2:05:06 AM
