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April 18, 2016

Supreme Court swiftly rules in Welch declaring Johnson ACCA vagueness decision retroactive

As reported here, just a few weeks ago the Supreme Court heard oral argument in Welch v. United States to address the retroactive application of last Term's significant ruling in Johnson (authored by Justice Scalia) that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague.   Justice Kennedy authored this opinion for the Court in its 7-1 ruling, and here is the heart of the opinion's analytical conclusion:

Under this [Teague] framework, the rule announced in Johnson is substantive.  By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the [Act] punishes.” Schriro, supra, at 353.  Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.  An offender in that situation faced 15 years to life in prison.  After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.  The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence.  Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause.  United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971).  It follows that Johnson is a substantive decision.

In the wake of the oral argument, I find this substantive ruling not at all surprising. What is a bit surprising, though, is that Justice Thomas not Justice Alito is the sole dissenter. Here is how his dissent gets started:

Last Term the Court held in Johnson v. United States, 576 U. S. ___ (2015), that because the residual clause of the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B)(ii), “combin[es] indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” it is unconstitutionally vague.  576 U. S., at ___ (slip op., at 6).  Federal prisoners then sought to invoke Johnson as a basis for vacating their sentences in federal collateral review proceedings.  See 28 U. S. C. §2255(a).

Today the Court holds that Johnson applies retroactively to already final sentences of federal prisoners.  That holding comes at a steep price.  The majority ignores an insuperable procedural obstacle: when, as here, a court fails to rule on a claim not presented in a prisoner’s §2255 motion, there is no error for us to reverse.  The majority also misconstrues the retroactivity framework developed in Teague v. Lane, 489 U. S. 288 (1989), and its progeny, thereby undermining any principled limitation on the finality of federal convictions.  I respectfully dissent.

April 18, 2016 at 10:12 AM | Permalink


What is surprising is they had a special opinion day (according to SCOTUSBlog) to hand down the opinion. Couldn't wait another day? They put it up so fast that the file at first didn't load properly on certain browsers.

Posted by: Joe | Apr 18, 2016 10:28:02 AM

Two weeks ago, in anticipation of Welch, a federal district judge in Oregon resentenced my client to time-served after he had served 9 years in prison under the ACCA. The original sentence was 22 years! I walked client out of prison last Friday. First order of business was a hamburger and fries. I suspect there will be lots of happy campers in the days ahead. I fervently hope each takes this opportunity to live a law-abiding life.

Posted by: Michael R. Levine | Apr 18, 2016 4:20:31 PM

Mr. Levine, nicely done!

Posted by: Dave from Texas | Apr 21, 2016 5:42:14 PM

Did Welch vs United States end up going retroactive?

Posted by: Stephanie | Apr 28, 2016 4:48:35 PM

Given the outcome in Welch, is it probable that Mathis will also be applied retroactively, as the rule announced was substantive?

Posted by: Leslie | Jun 29, 2016 5:02:27 PM

Good day, I would like to know if it too late to file a petition of relief under the Johnson's Act or ACCA in Florida. Also where would one file a motion in Miami?

Thank You,

Posted by: David | Sep 26, 2016 10:51:26 AM

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