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December 18, 2015

Updating the bubbling lower-court vagueness mess six months after Johnson

Over at Casetext, Leah Litman has this effective and extensive new commentary (with lots of links) titled "Circuit Splits & Original Writs: What the Supreme Court must address — and now — in the wake of Johnson v. United States."  Here is how it gets started:

Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  In a previous Casetext post, I described an emerging circuit split regarding whether the Supreme Court had “made” Johnson retroactive.  The Anti-terrorism and Effective Death Penalty Act (AEDPA) — in particular title 28 section 2255(h)(2) — permits prisoners to file a second or successive petition for post-conviction review if the petition contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.”  By early August, less than two months after Johnson, the U.S. Courts of Appeals for the Seventh and Eleventh Circuits had issued conflicting opinions about whether the Supreme Court has “made” Johnson retroactive.

In the last four months, that circuit split has deepened.  And, as my prior post explained, the statutory restrictions on post-conviction review mean that the Supreme Court cannot review by way of a petition for certiorari the court of appeals’ determination to allow a second or successive petition for post-conviction relief to proceed. Under title 28 section 2244(b)(3)(E), “the grant or denial of an authorization by a court of appeals to file a second or successive application shall not … be the subject of a petition … for a writ of certiorari.”  So while the circuits disagree about whether the Supreme Court has “made” Johnson retroactive, the Supreme Court cannot resolve whether it has “made” Johnson retroactive in the traditional way, by granting certiorari to review one of the court of appeals’ decisions.

More troubling, it is has become prohibitively difficult for the Supreme Court to weigh in on the split by granting review in a case involving a first petition for post-conviction review because the United States is conceding that Johnson is retroactive.  The courts of appeals and district courts have uniformly (and rightly, in my view) agreed with the United States, granting prisoners’ “first” — that is, initial — petitions for post-conviction review in cases where prisoners were sentenced under ACCA’s residual clause.  And because no one is appealing these decisions — the government agrees Johnson is retroactive, and the decisions are favorable to prisoners — the Supreme Court will not be able to clarify whether Johnson is retroactive, or “make” Johnson retroactive, by granting certiorari in a case involving a “first” petition for post-conviction review.

In this post, I’ll highlight several circuit splits that have emerged in light of Johnson — about whether the decision is applicable to various provisions of the federal Sentencing Guidelines, and about whether the rule that Johnson announced has been made retroactive.  I’ll also argue that the Supreme Court should exercise its discretion to weigh in on whether it has made Johnson retroactive by way of one of the extraordinary writs it has the power to issue. The Court has on its docket at least two petitions seeking such non-traditional habeas relief, and it will consider the petitions some time in January.

In the six months since Johnson was decided, at least two circuit splits have emerged. One concerns whether other provisions, including the career offender Guideline of the Federal Sentencing Guidelines, are also unconstitutionally vague.  There is also some uncertainty about whether various procedural hurdles — specifically retroactivity and procedural default — bar defendants from being resentenced.  The second circuit split concerns whether the Supreme Court has “made” the rule invalidating ACCA’s residual clause retroactive.

December 18, 2015 at 03:36 PM | Permalink


Vagueness generates arguments, and lawyer jobs. It is in bad faith, a form of lawyer fraud. Vagueness should be an impeachable offense. The Congress must start impeaching the Supreme Court Justices for substantive malfeasance, rather than for trivial, collateral, unimportant lawyer gotcha corruption.

Posted by: Supremacy Claus | Dec 18, 2015 11:57:59 PM

I'm surprised the government can't appeal a successful grant of a second petition. Although as I understand it right now the CoAs have only allowed the habeas petition to go forward, not actually granted it, I could see some argument for not allowing the cert petition until the habeas petition itself has been granted or denied. I would certainly expect that after another round in the district court that it would then become the proper subject of a cert petition.

Posted by: Soronel Haetir | Dec 19, 2015 11:31:06 AM

The government could appeal from the actual grant of a second or successive petition, which would happen in the district court. But neither cite can seek cert from the court of appeals decision on permission to file the second or successive petition. But in any event, it seems unlikely the government would appeal here, because they're conceding the case should be given retroactive effect.

Posted by: Jay | Dec 19, 2015 11:49:18 AM

Sorry, neither "side," not "cite." I guess the way it could come up is if a court allowed a second or successive petition from a guidelines career offender sentence, which the gov't has not conceded Johnson retroactively applies to. In that case, the government would have the incentive to appeal it up.

Posted by: Jay | Dec 19, 2015 11:50:32 AM


There's also the issue that by the time such a claim gets through the district court we are very likely to have a different president, possibly one with very different views on the merits of such an appeal.

Posted by: Soronel Haetir | Dec 19, 2015 10:13:25 PM

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