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April 18 — The U.S. Supreme Court's decision in 2015 that a provision of the Armed Career Criminal Act was unconstitutionally vague is retroactive on collateral review, the high court held April 18.
The opinion came following an unusual grant, with the justices agreeing to hear a pro se defendant's case asserting that its earlier ruling—invalidating the so-called residual clause under the ACCA's definition of “violent felony” as unconstitutionally vague—should be retroactive for defendants making habeas claims.
That provision formerly allowed for sentencing enhancements when judges found defendants' convictions qualified them as violent felons for any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
The court struck down the phrase in Johnson v. United States, 2015 BL 204915 (U.S. 2015) (97 CrL 403, 7/1/15), but didn't decide whether its decision was retroactive, leading to a circuit split regarding its application on collateral review.
Despite the relative cohesiveness of the court—the opinion was 7–1—one observer told Bloomberg BNA that the decision leaves some uncertainty. However, there is a clear deadline approaching for defendants who want to seek relief based on the retroactivity of Johnson—June 26, 2016.
There are also questions arising regarding parallel provisions in other federal laws that mirror the language of the ACCA's now defunct residual clause.
On appeal, the Justice Department agreed with the defendant that the ruling should be retroactive. The high court appointed private counsel to argue against that stance. The court heard oral argument on March 30 (99 CrL 6, 4/6/16).
The arguments revolved around whether the ruling in Johnson amounted to a substantive or procedural ruling. If substantive, the ruling would automatically be considered retroactive and the defendant would be entitled to relief.
Attorneys for both the defendant and the DOJ argued a categorical or results-based approach that considered whether the impact of the ruling affected the class of defendants—basically whether their sentences would have been lower without the unconstitutional provision.
“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,” Justice Anthony M. Kennedy wrote for the majority. “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.”
While the Justice Department argued in favor of the defendant's test, the high court appointed Helgi C. Walker, a partner at Gibson, Dunn & Crutcher LLP in Washington, to brief and argue the case in support of the judgment below.
Walker argued the test on whether the ruling was procedural turned on whether it nullified the right of Congress to sentence a class of individuals. Because Congress could still pass a mandatory minimum law for violent felony offenders—albeit with more specific language—the ruling was procedural, she said.
Past precedent regarding the difference between a substantive and procedural ruling focused on whether the statute in question unconstitutionally criminalized conduct “immune from punishment,” Walker said. Because Johnson didn't rule on a certain behavior, it amounted to a procedural ruling.
Kennedy disagreed with that assessment and wrote that the underlying constitutional guarantee “depends instead on whether the new rule itself has a procedural function or a substantive function—that is, whether it alters only the procedures used to obtain the conviction, or alters instead the range of conduct or class of persons that the law punishes.”
Leah Litman, Climenko Fellow and Lecturer on Law at Harvard Law School, Cambridge, Mass., told Bloomberg BNA that, while the court's precedent pointed in this direction, today's ruling results in some legal uncertainty.
Litman specializes in constitutional law and criminal law and procedure.
Specifically, she pointed to the same issue that Justice Clarence Thomas identified in his dissenting opinion—how can defendants who never made Johnson retroactivity arguments on direct appeal be entitled to Johnson relief in their habeas appeals?
Even though the government waived the procedural default arguments that could bar such claims, it's not certain that all courts would grant relief, she said.
Meanwhile, habeas defendants who received sentencing enhancements under the now-defunct provision of the ACCA face a quickly closing statute of limitations, Litman said.
Habeas defendants are only entitled to claim relief within one year of a decision, she stated. For those seeking relief based on Johnson retroactivity, Litman said they face the June 26 deadline.
“Defendants should file now and no later than June 26,” she emphasized.
That deadline also means the Supreme Court will likely not hear a follow-up case that would allow the justices to resolve the procedural issue Thomas raised, she said. The result of such inaction would be that if courts decline to accept the government's waiver arguments, habeas defendants could still face denials for relief relying on Johnson retroactivity, Litman said.
The other uncertainty resulting from this decision is whether cases involving parallel provisions with language mirroring the ACCA's residual clause should receive the same treatment as cases receiving Johnson retroactivity, she said.
For example, the federal sentencing guidelines and a provision of the Immigration and Naturalization Act include such provisions, which have been struck down by courts of appeal, including the Ninth and Seventh circuits under Johnson, Litman said.
However, it is unlikely the Supreme Court would hear follow-up cases for parallel provisions unless the circuits start inconsistently striking them down, she said.
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