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July 6, 2015

Has any post-Johnson ACCA (or career offender) prisoner litigation now gotten started?

The question in the title of this post is my post-holiday follow-up thought in light of my prior posts here and here and here concerning the uncertain (but surely significant) fall-out from the Supreme Court's big ruling in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." Summarizing prior postings, I feel confident that, thanks to Johnson, there are now (1) many hundreds — perhaps many thousands — of current federal prisoners serving lengthy ACCA statutorily-mandated prison terms that are constitutionally suspect, and (2) many thousands — perhaps many tens of thousands — of current federal prisoners serving lengthy career-offender guideline-recommended prison terms that are now subject to a new kind of legal challenge.  This post seeks to know if any of these hundreds or thousands of federal prisoners have filed new Johnson-based challenges to their sentences yet.

Among the many reasons I am eager to follow this litigation closely and ASAP is because I see so much doctrinal and practical uncertainty, both substantively and procedurally, as to how this litigation may and should play out.   Indeed, uncertainty about the impact of Johnson is the only thing I am certain about, especially in light of some recent (conflicting?) analysis of post-Johnson litigation issues I have seen.  Consider, for example, the divergent analysis of post-Johsnon issues in this piece by Gray Proctor titled "Retroactivity and the Uncertain Application of Johnson v. United States: Is the Rule ‘Constitutional’ on Post-Conviction Review?" and in this blog post by Steven Sady titled simply "Johnson: Remembrance Of Illegal Sentences Past."

Long story short, there is sure to be a long litigation story behind every prisoner's effort to use Johsnon to shorten his lengthy prison term.  Especially for the sake of those prisoners whose current sentences are now the hardest to justify, both legally and practically, I hope these long litigation stories are getting started ASAP.

Some prior posts on Johnson and its possible impact:

July 6, 2015 at 03:30 PM | Permalink


Doug, I am currently drafting a motion to declare a first degree murder case noncapital because the only aggravator
which is alleged is that the killing was "especially heinous, atrocious and cruel." We are using Johnson to support the categorical approach to the vagueness standard.

Much to Justice Alito's dismay in his dissent, the Court held that a statute can be declared unconstitutionally vague, even if there is core conduct that everyone would agree was especially heinous, atrocious and cruel. I think that aspect of the Johnson opinion holds the prospect of application of Johnson in the non-ACCA, non-federal context.


Posted by: bruce cunningham | Jul 6, 2015 10:28:34 PM

Unfortunately, due to July 4th holiday accelerated publishing schedule, I did not have time to mention two issues I think are important to the Johnson question:
1) Waivers of appeal/PCR (I suspect older plea agreements may mention 2255 but not 2241), and
2) The possibility that statutory interpretation decisions are automatically retroactive, and need not pass through Teague, because courts interpreting statutes merely explain what the statute always meant. If this rule is applied, then I think Johnson is automatically retroactive on collateral review for first, timely 2255 motions, but if a 2255 would be untimely or successive it cannot be filed b/c there is no constitutional rule to trigger the exceptions. 2241 would be the only option.

Posted by: Gray Proctor | Jul 6, 2015 11:47:31 PM

Bruce. You are beyond the pale of humanity.

And this post tells it all. Generate massive, stupid, anti-victim litigation in a legal fiction for government make work jobs.

Posted by: Supremacy Claus | Jul 7, 2015 2:21:11 AM

Bruce, very creative. A superb example of zealous advocacy. Good Luck.

Posted by: Mihael R. Levine | Jul 7, 2015 9:15:17 AM

Thank you Michael,


Posted by: bruce cunningham | Jul 7, 2015 2:32:16 PM

There has been a lot of litigation about vagueness on the especially cruel, atrocious, and heinous requirement. I know my state has determined it's not void for vagueness. The original Supreme Court interpretation of that language probably wasn't void, although it doesn't appear their interpretation has been followed in a long time (even though, iirc, they struck down at least one state's law that had that standard but interpreted it in a more lenient way).

Posted by: Erik M | Jul 8, 2015 6:52:11 AM


I'm sure that you are by now aware of United States v. Darden (July 6, 2015), a per curiam decision in your Circuit in which the court applied Johnson to set aside a career offender sentence, noting that the residual clauses in the ACCA and the Guidelines use the same language.

Posted by: Late Inning Relief | Jul 9, 2015 4:17:55 PM

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