"Jurisdiction and Resentencing: How Prosecutorial Waiver Can Offer Remedies Congress Has Denied"

The title of this post is the title of this notable new and timely scholarship authored by Leah Litman and Luke Beasley. Here are excerpts from the start of the piece which highlights its themes and timeliness: 

This Essay is about what prosecutors can do to ensure that prisoners with meritorious legal claims have a remedy. The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes draconian conditions on when prisoners may file successive petitions for post-conviction review (that is, more than one petition for post-conviction review).  AEDPA’s restrictions on post-conviction review are so severe that they routinely prevent prisoners with meritorious claims from vindicating those claims.

Take, for example, the recent litigation about whether prisoners with “Johnson” claims may be resentenced. Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. ACCA imposed a mandatory fifteen-year term of imprisonment on prisoners; but without ACCA, the statutory maximum term of imprisonment for these prisoners is ten years.  Johnson therefore means these prisoners could lawfully be sentenced to no more than ten years in prison.  Prisoners whose ACCA sentences depended on the residual clause are now seeking to have their 15-year sentences reduced to the lawful 10 years.  But three courts of appeal held that AEDPA bars prisoners with Johnson claims from obtaining relief if they have already filed one petition for post-conviction review, because the prisoners do not satisfy AEDPA’s conditions for filing a successive petition for postconviction review....

Part I describes AEDPA’s restrictions on post-conviction petitions that are preventing prisoners with meritorious claims from obtaining relief, and how the United States is attempting to bypass those restrictions by waiving the argument that AEDPA’s restrictions are not satisfied.  Part II argues that AEDPA’s restrictions on filing successive petitions for post-conviction review are not jurisdictional, and that courts may therefore accept the government’s waiver and allow prisoners to obtain relief on their claims even if prisoners do not satisfy AEDPA’s preconditions for filing successive petitions for post-conviction review.