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.

Circuit Splits

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.

Career-Offender (And Other) Guidelines

Johnson held ACCA’s residual clause unconstitutionally vague, and, in doing so, breathed new life into the void-for-vagueness doctrine. EvanLee and Steve Sady suggested that, given what the Court said about ACCA’s residual clause, other provisions of law might also be unconstitutionally vague. Some courts have agreed. For example, relying on Johnson, the U.S. Court of Appeals for the Ninth Circuit held a provision of the Immigration & Nationality Act void for vagueness.

A circuit split has also emerged on whether the career offender Guideline of the Federal Sentencing Guidelines is void for vagueness. ACCA imposes a 15-year mandatory minimum sentence for defendants convicted of being a felon in possession of a firearm who have three or more convictions for “violent felonies.” ACCA’s “residual clause” defined a violent felony to include “any crime . . . that . . . otherwise involves conduct that presents a serious potential risk of physical injury to another.” Section 4B1.1 of the Guidelines increases a defendant’s recommended sentencing range—whatever the defendant’s offense of conviction—if the defendant has “at least two prior felony convictions of … a crime of violence.” And section 4B1.2 of the Guidelines defines a “crime of violence” using precisely the same language as ACCA’s residual clause: A “crime of violence” includes any offense punishable by more than one year that “involves conduct that presents a serious potential risk of physical injury to another.” Courts of appeals have interpreted the career-offender Guideline to require the same “wide-ranging inquiry” the Supreme Court had used to interpret ACCA’s residual clause (and that it found unconstitutionally vague).

Some courts of appeals have held that the career offender Guideline is unconstitutionally vague in light of Johnson. United States v. Madrid, No. 14-2159 (10th Cir. Nov. 2, 2015). Other district courts have done so. E.g., United States v. Litzy, No. CR 3:15-00021 (S.D. W. Va. Oct. 8, 2015). The Seventh Circuit, by contrast, held that there was no “plain error”—a clear error affecting the defendant’s substantial rights—where the defendant was sentenced under the career offender Guideline. United States v. Rollins, No. 13-1731 (7th Cir. Sept. 1, 2015). (However, the Seventh Circuit also specifically noted that the defendant had not challenged the circuit precedent holding that Guidelines are not amenable to vagueness challenges.) The Eleventh Circuit held in no uncertain terms that the career offender Guideline is not unconstitutionally vague. United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015); Denson v. United States, No. 14-10211 (11th Cir. Sept. 30, 2015); Beckles v. United States, No. 13-13569 (11th Cir. Sept. 29, 2015).

The disagreement boils down to whether a Sentencing Guideline can ever be void for vagueness. The Eleventh Circuit reasoned: “The vagueness doctrine, which rests on a lack of notice, does not apply to advisory Guidelines.” United States v. Matchett, 802 F.3d 1185, at 1194. (Professors Doug Berman & Carissa Hessick have filed an amicus brief urging the full Eleventh Circuit to rehear the panel’s decision.)

One thing that is notable about this circuit split is that the United States has been conceding that the career offender Guideline is invalid in light of Johnson. See, e.g., United States v. Walker, No. 14-13457 (11th Cir. Nov. 13, 2015) (“[T]he government agrees, that Johnson’s holding … also applies to the identically worded residual clause in section 4B1.2(a)(2) of the guidelines.”); United States v. Taylor, No. 14-2635 (8th Cir. Oct. 9, 2015) (“The United States concedes that the sentence imposed by the district court should be vacated and the case remanded for resentencing in light of Johnson.”); United States v. Smith, No. 14-2216 (10th Cir. Oct. 5, 2015); United States v. Cornejo-Lopez, No. 8:15CR46, (D. Neb. Nov. 17, 2015). Some courts have used the government’s concession as a basis to resentence defendants, while reserving judgment on whether the court would find the Guideline invalid absent the United States’ concession. United States v. Benavides, No. 14-10512 (9th Cir. Sept. 23, 2015); United States v. Grayer, No. 14-6294 (6th Cir. Sept. 17, 2015); United States v. Smith, No. 14-2216 (10th Cir. Oct. 5, 2015) (“[W]e see no reason to question” “the government’s concessions and recommendations.”); United States v. Goodwin, No. 13-1446 (10th Cir. Sept. 4, 2015).

But the Eleventh Circuit refused to accept the government’s confession of error. Why wouldn’t a court accept the government’s concession that a Guideline was incorrectly applied, at least where the government’s argument is plausible? As a general rule, litigants don’t have to make every argument on which they could potentially win. And when litigants don’t make an argument, courts don’t have to make (or accept) the argument for them—even if that argument is right. A court will come to the “wrong” result on an issue because a party hasn’t raised it. Courts don’t even have to entertain an argument that is completely right if the litigant eventually makes it: Under the well-established doctrine of “forfeiture,” a court will decline to consider an argument if the litigant failed to make the argument earlier in the litigation. E.g., Usman v. Holder, 566 F.3d 262, 268 (1st Cir. 2009);United States v. Moore, 376 F.3d 570 (6th Cir. 2004). And courts are even more reticent to accept an argument that has been “waived”—that is, an argument that a litigant has affirmatively declined not to make, or an argument that a litigant has specifically indicated lacks merit. E.g., United States v. Clements, 590 F. App’x 446, 449 (6th Cir. Oct. 22, 2014) (“While a party who waives evidentiary objections may not seek review of them at all, a party who fails to object to the introduction of evidence may seek plain-error review of the forfeited objection.”); United States v. Walker, 615 F.3d 728, 733 (6th Cir. 2010) (“But Walker did not just forfeit this argument; he waived it.”) Forfeiture and waiver are routinely invoked in criminal cases, often against defendants. But they can also be invoked against the government, even when doing so results in vacating a conviction or sentence. United States v. Noble, 762 F.3d 509, 527 (6th Cir. 2014) (“[T]he government, like other litigants, therefore, can forfeit or waive an argument.”).

Quoting some Supreme Court cases, the Eleventh Circuit maintained that “[C]onfessions of error ... do not relieve this Court of the performance of the judicial function …. Our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.” But the Supreme Court cases that the Eleventh Circuit quoted said—in passages omitted by the Eleventh Circuit—that “The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight,” Young v. United States, 315 U.S. 257, 258 (1942), and that “Confessions of error are, of course, entitled to and given great weight.” Sibron v. New York, 392 U.S. 40, 58 (1968). And both cases ultimately reversed the convictions, agreeing with the government that there were, in fact, errors.

There may also be institutional reasons why courts should take seriously the government’s confessions of error. One reason why we think that the power to enforce criminal laws is lodged in the executive is to allow prosecutors to exercise discretion in appropriate cases. Given the many documented downsides of too much prosecutorial discretion, maybe we should try to realize some of its potential benefits, including exercises of discretion that are used to curb the broad reach of substantive criminal law and the imposition of severe criminal penalties. Moreover, as public officials, prosecutors have a duty to uphold the Constitution. Why not take seriously their constitutional judgment that the Guidelines are invalid? The United States’ concession that the career offender Guideline is invalid also avoids unnecessary judicial determinations. The U.S. Sentencing Commission is currently revisiting the career offender Guideline in light of Johnson. But while the Commission decides how to revise the Guideline, there still needs to be some decision about what should happen to defendants who have already been sentenced under the previous version of the career offender Guideline. We could ask courts to resolve whether the career offender Guideline is invalid. But the United States’ concession allows courts to avoid ruling on the validity of the career offender Guideline, which the Commission may soon take off the books anyways.

Retroactivity (& Other Procedural Hurdles To Resentencing)

In light of Johnson, defendants can no longer be sentenced under ACCA’s residual clause. But what about defendants who have already been sentenced under the residual clause? Several procedural rules—some judge-made, some statutory—limit who may be resented in light of an intervening decision. I’ll flag three such rules here—retroactivity, procedural default, and cognizability—and survey what courts have said about whether these rules bar defendants from being resentenced in light of Johnson.

Some of the questions courts would have confronted in determining who could be resentenced in light of Johnson have been obviated by the fact that the government is conceding that defendants sentenced under ACCA’s residual clause should be resentenced. That is, the United States agrees that the rule invalidating ACCA’s residual clause applies retroactively, and the government is waiving other procedural objections to resentencing defendants who were sentenced under ACCA.

But the possibility that other provisions—including the career offender Guideline—are also invalid under Johnson raises additional questions. Do these rules also apply retroactively? Are they too cognizable in post-conviction proceedings? And are defendants excused from procedurally defaulting these arguments? Part of the difficulty is identifying what, exactly, is the “rule” in Johnson. Are decisions invalidating the career-offender Guideline part of the “new rule” in Johnson, or are they separate new rules?

Retroactivity

Generally, “new” constitutional rules do not apply to cases that have already become final. A conviction becomes final when a prisoner has exhausted his direct appeal in the federal court of appeals and the Supreme Court has denied a petition for certiorari or the time to file a petition for certiorari has expired. New rules apply “retroactively” to cases that have already become final if the new rule is “substantive” or announces a “watershed” rule of criminal procedure. New “substantive” rules include “decisions that narrow the scope of a criminal statute by interpreting its terms.” A rule is substantive if it creates “‘a significant risk that a defendant stands … faces a punishment that the law cannot impose upon him.”

The United States is conceding that the rule in Johnson—that ACCA’s residual clause is unconstitutionally vague—is retroactive. See, e.g., Woods v. United States, No. 15-3531 (8th Cir. Nov. 20, 2015) (“Here, the United States concedes that Johnson is retroactive.”); Tooley v. United States, No. 05-00211-01-CR-W-FG (W.D. Mo. Dec. 1, 2015) (“The Court further finds, again without objection from the parties, that Johnson constitutes a new substantive rule of constitutional law that should be applied retroactively to defendants previously sentenced under the ACCA.”); United States v. Nagy, No. 5:13-CR-138 (N.D. Ohio Nov. 6, 2015). That seems right to me—Johnson altered what punishment a defendant could lawfully received, and ACCA’s mandatory minimum imposed a real substantive liability on defendants.

But the government is not doing the same for the rule that the career offender Guideline is unconstitutionally vague: “The Government admits Johnson establishes a new, retroactive substantive rule as to the ACCA, but nonetheless argues it creates nothing more than a non-retroactive procedural rule as to the Sentencing Guidelines.” See, e.g.,United States v. Willoughby, __ F. Supp. 3d __ (N.D. Ohio Nov. 18, 2015);Letter Brief for United States in In re Gilberto Rivero, No. 15-13089 (Sept. 28, 2015), at 10-11 (“As applied to the guidelines, however, Johnson is a new, non-watershed rule of procedure that has not been ‘made’ retroactive by the Supreme Court to cases on collateral review.”); Swanson v. United States, No. 15-2776 (7th Cir. Sept. 4, 2015) (“The government … protests … Johnson … is not retroactive to sentences imposed under the Guidelines.”); Brief for United States in Swanson v. United States, No. 15-2776 (7th Cir. Aug. 26, 2015), at 6 (“It is the Department of Justice’s position that Johnson is a new, non-watershed procedural rule as applied to guidelines cases.”). (I predicted and tentatively defended the idea that a rule invalidating ACCA would be retroactive, but a rule invalidating the Guidelines would not be when I initially wrote about the resentencing implications of Johnson.)

Courts thus far seem to be accepting the government’s concessions and finding that Johnson is retroactive. But two decisions denying authorization to file second or successive petitions—one from the Fifth Circuit and one from the Eleventh Circuit—suggested that Johnson might not be retroactive at all. The Fifth Circuit in In re Williams stated that “Johnson is not available … on collateral review” because it was not a substantive rule. And the Eleventh Circuit in In Re Rivero maintained that “the rule announced in Johnson does not meet the criteria the Supreme Court uses to determine whether the retroactivity exception for new substantive rules applies.” However, no court of appeals in a case involving a first petition for post-conviction review has held that Johnson is not retroactive. But one district court ruled that the Fifth Circuit's decision inWilliamsheldthatJohnsonwas not retroactive, and therefore barred a prisoner from obtaining relief in a first petition for post-conviction review. SeeHarrimonv.United States, 15-cv-00152 (N.D. Tex. Nov. 19, 2015).

There are some conflicting dispositions regarding whether the rule that the career offender Guideline is invalid applies retroactively. However there’s no square conflict in holdings just yet. Some district courts have held the rule invalidating the career offender Guideline is not retroactive: “[T]he Government's position” that “Johnson establishes a new, retroactive substantive rule as to the ACCA, but … nothing more than a non-retroactive procedural rule as to the Sentencing Guidelines” “tracks the logic of the Supreme Court's distinction between substantive and procedural rules.” Willoughby, supra. The U.S. Court of Appeals for the Seventh Circuit, by contrast, granted authorization to file second or successive post-conviction petitions in cases where the defendant was sentenced under the career offender Guideline. E.g., Stork v. United States, No. 15-2687 (Order Aug. 13, 2015). But in these orders the Seventh Circuit cautioned that it had determined only that defendants had made the “prima facie” showing necessary to receive permission to file a second or successive petition, and that the district court, on remand, must still determine whether the defendant will receive the benefit of the new rule.

Procedural Default

The doctrine of procedural default bars consideration of a claim in post-conviction proceedings where the defendant could have, but did not raise the claim on direct appeal. Because defendants could have, at any point, made the argument that ACCA (or the Guidelines) were invalid, defendants likely procedurally defaulted the argument that ACCA (or the Guidelines) are invalid if they did not previously raise it. However, courts will hear a procedurally defaulted claim if the defendant establishes “cause” and “prejudice.” The additional term of years resulting from ACCA’s mandatory sentencing enhancement constitutes prejudice, and a higher recommended Guidelines range might constitute prejudice as well.

Therefore, these cases will turn on whether the defendant has established “cause.” A defendant can establish “cause” for a procedural default by demonstrating there has been a fundamental miscarriage of justice. And a fundamental miscarriage of justice has occurred if the defendant is actually innocent: Schlup v. Delo held that a claim of actual innocence could excuse a defendant’s procedural default where the defendant established he “probably” did not commit the underlying offense. Sawyer v. Whitley then held that a defendant could establish actual innocence, thus excusing a procedural default, if the defendant established by “clear and convincing evidence” that he was ineligible for a capital sentence, even where he committed the underlying offense.

Because Sawyer involved a death sentence, it is unclear whether defendants may be actually innocent of noncapital sentences as well as capital ones. (The Supreme Court granted cert to resolve this question almost a decade ago, but disposed of the case on other grounds.) Several courts of appeals have suggested a prisoner is not actually innocent where he establishes he was improperly subjected to the career offender guideline. Some of these cases contain broad statements that the actual innocence exception is categorically unavailable for sentencing errors that result in a noncapital sentence.United States v. Nichols, 472 F. App’x 856, 857 (10th Cir. 2012) (“A defendant, however, cannot be actually innocent of a non-capital sentence.”); Sun Bear v. United States, 644 F.3d at 705 (“‘[A] sentence is not illegal . . . unless it exceeds the statutory maximum for the offense of conviction.’” (quoting United States v. Stobaugh, 420 F.3d 796, 804 (8th Cir. 2005))).

But other cases contain language that supports the idea that a defendant may be actually innocent, thus excusing a procedural default, if he was improperly sentenced to a mandatory minimum sentence. The cases reason that where “[a] sentence . . . violates a statute”—such as where a defendant receives a sentence that exceeds the statutory maximum for his offense of conviction—this “could well be thought an error grave enough to warrant relief . . . a ‘fundamental error equivalent to actual innocence.’”

There has not been a published court decision specifically addressing procedural default of a Johnson claim. But the United States has been waiving procedural objections—including procedural default—for defendants who were sentenced under ACCA’s residual clause. See, e.g., Brief of United States in United States v. Imm, No. 14-4809, at 5 (3d Cir. Aug. 6, 2015) (“The government further waives any objection based on procedural default.”); Tooley v. United States, No. 05-00211-01-CR-W-FG, at *1 (W.D. Mo. Dec. 1, 2015) (“The Court further finds, without objection from the parties, that Tooley should be resentenced to a term of 120 months.”); United States v. Schultz, No. CR 13-214 (D. Minn. Oct. 7, 2015) (“The United States of America (the “Government”) does not oppose the motion.”); Godley v. United States, No. 4:05-CR-17-FL-1 (E.D.N.C. Sept. 2, 2015); United States v. Hamilton, No. 06CR200-01 (D.D.C. Aug. 24, 2015). It has not done the same for defendants sentenced under the career offender Guideline. See, e.g., Letter Brief for United States in In re Gilberto Rivero (“Rivero procedurally defaulted his claim by failing to raise a constitutional vagueness objection to the sentencing court’s reliance on the residual clause at sentencing or on direct appeal.”); Swanson v. United States (“The government … protests … Swanson has procedurally defaulted his claim.”); Brief for United States in Swanson v. United States (“The government also opposes Swanson’s application on procedural default grounds …. Swanson failed to challenge his career offender designation on appeal on the ground that the residual clause is constitutionally vague.”).This too the outcome I predicted and tentatively defended back in April--that defendants sentenced under ACCA could be actually innocent, but that defendants sentenced under the career offender Guideline might not be.

Cognizability

Section 2255 is the vehicle prisoners use to file post-conviction motions. Section 2255 allows a prisoner to set aside a sentence on the grounds “that the sentence was in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” The Supreme Court has suggested that section 2255(a) codifies what were previously judge-made rules for the kinds of errors that may be raised in post-conviction proceedings. Under these doctrines, an error is cognizable in a post-conviction proceeding if it has a particular “character or magnitude.” Errors that are “jurisdictional” or “constitutional”—two categories specifically mentioned in section 2255—are cognizable. So too are errors that result in “a fundamental defect which inherently results in a complete miscarriage of justice.” If this language sounds familiar, its because it is. The ways in which courts have described what errors are cognizable in section 2255 proceedings borrow on the rules for retroactivity and the rules for procedural default: Courts have suggested errors are more likely to be cognizable in section 2255 proceedings if they are substantive, rather than procedural (echoing rules for retroactivity), Narvaez v. United States, 674 F.3d 621, 627 n. 11 (7th Cir. 2011) (“The misapplication of the career offender status—which increased Mr. Narvaez's sentencing range—is certainly a substantive error more akin to the error in Davis than the error in the other cases.”), or if they result in a fundamental miscarriage of justice (echoing rules for procedural default), United States v. Newbold, 791 F.3d 455, 458-59 (4th Cir. 2015) (referring to “fundamental defects” & “miscarriage[s] of justice” that may be cognizable in section 2255 proceedings).

Prior to Johnson, some courts had suggested ordinary Guidelines errors are not cognizable in section 2255 proceedings. The Eighth Circuit held that a misapplication of the career offender Guideline was not cognizable in a section 2255 proceeding. Sun Bear, supra. The Third Circuit disagreed, holding that, at least for defendants sentenced under the mandatory Guidelines, a misapplication of the career offender Guideline is cognizable in a section 2255 proceeding.

Cognizability should not be a bar to raising Johnson claims in section 2255 proceedings, whether the defendant was sentenced under ACCA or the career offender Guideline, to the extent all Johnson claims are “constitutional”: Every defendant raising these claims is arguing a provision is unconstitutionally void for vagueness. However, some language in the Eighth Circuit’s opinion suggested that a sentence could be unlawful—and therefore challenged in a section 2255 proceeding—only if it exceeded the statutory maximum for an offense.

The Supreme Court "Made" Johnson Retroactive

The previous rules—retroactivity, procedural default, and cognizability—arise whenever a prisoner files a petition for post-conviction review, including where it is a defendant’s first petition for post-conviction review. But there are additional limitations that apply when a prisoner seeks to file another petition for post-conviction review after having already filed one petition. The Anti-terrorism and Effective Death Penalty Act (AEDPA), title 28 section 2255(h)(2) permits prisoners to file second or successive petitions under very limited circumstances, including where the petition contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The gateway to second petitions for post-conviction review—unlike for first petitions—opens only once the rule has been made retroactive by the Supreme Court, as opposed to by a court of appeals.

In August, the Seventh and Eleventh Circuits had already come to different conclusions about whether the Supreme Court had “made” Johnson retroactive. Since that time, more courts of appeals have weighed in. The Eighth, Second, Ninth, and First Circuits have granted authorization to file second or successive petitions in cases where prisoners were sentenced under ACCA’s residual clause. The Tenth Circuit has denied authorization to file second or successive petitions. So too has the Fifth Circuit.

What about cases where prisoners were sentenced under the career offender Guidelines? The Eleventh Circuit’s initial opinion in Rivero denied authorization to file a second petition where the prisoner was sentenced under the then-mandatory Guidelines. Part of the court’s reasoning for why the Supreme Court could not have made Johnson retroactive was that the Court had never before held a Guideline invalid or unconstitutionally vague. By contrast, the Seventh Circuit has granted authorization to file second petitions where prisoners were sentenced under advisory Guidelines. Best v. United States, Case No. 15-2417 (7th Cir. Aug. 5, 2015); Swanson v. United States, No. 15-2776 (7th Cir. Sept. 4, 2015).

Here too, one interesting feature of these decisions is that the United States appears to be conceding that courts of appeals should authorize second or successive petitions to be filed, at least where prisoners were sentenced under ACCA’s residual clause. Woods v. United States, No. 15-3531 (8th Cir. Nov. 20, 2015) (“Here, the United States ... joins Woods's motion. Based on the government's concession, we conclude that Woods has made a prima facie showing that his motion contains ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.’”); Joint Emergency Motion in United States v. Striet; Joint Emergency Motion in Reliford v. United States. Some courts have turned this concession into a reason why they are granting authorization to file second or successive petitions. E.g., Pakala v. United States(“In view of the government’s concessions, we certify that Pakala has made the requisite prima facie showing that the new constitutional rule announced in Johnson ‘qualifies as a basis for habeas relief on a second or successive petition.’”). And here too, the courts of appeals may be resisting this conclusion. In the Fifth Circuit case, for example, the United States specifically wrote to the court that “the government does not object to the defendant’s motion for leave to file a successive 2255 motion.”

The courts’ refusal to accept the government’s concession on whether the Supreme Court has “made” Johnson retroactive—and thus whether to authorize a second or successive petition—might be more understandable than the courts’ refusal to accept the government’s concession that the career offender Guideline is invalid. Some courts have held that some of AEDPA's gatekeeping requirements are “jurisdictional.”That is, those requirements affect the federal courts’ power and authority to even hear these petitions in the first place. If that’s right, then the court can’t accept the government’s argument because parties cannot consent to federal jurisdiction if there is none. Federal courts must ascertain for themselves whether they have jurisdiction over a case, and litigants cannot “waive” or “forfeit” arguments that go to the courts’ jurisdiction. Of course, this assumes that the gatekeeping requirements are jurisdictional. Not all courts agree that they are. And one of my former students and I are analyzing this issue in a forthcoming piece.

Original Writs: “Making” Johnson Retroactive

So, to take stock: Johnson means that there are prisoners who have received a sentence that exceeds the statutory maximum for their offense. Johnson is also retroactive. In fact, it’s so clearly retroactive the United States is conceding that it is. But the courts of appeals disagree about whether the Supreme Court has “made” it retroactive. They also disagree about whether they can accept the government’s concession that the Supreme Court has “made” it retroactive.

But the Supreme Court can’t take a petition for certiorari from one of the court of appeals decisions granting or denying authorization to file a second or successive petition. 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 appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” In Felker v. Turpin, the Supreme Court upheld this provision against a constitutional challenge.

In August, it was possible for the Supreme Court to weigh in on whether it had made Johnson retroactive in fairly straightforward ways. It could have granted a case involving a first petition for post-conviction review, and “made” Johnson retroactive by applying the decision to a case on post-conviction review. But that possibility all but disappeared once the United States started conceding that Johnson is retroactive. Courts accepted the government’s concession, and this means no one is appealing the decisions that are favorable to prisoners.

That leaves a few possibilities for how the Court could weigh in on whether it has “made” Johnson retroactive.

First Petition For Post-Conviction Review: Guidelines

The Supreme Court could “make” Johnson retroactive by applying the rule in Johnson to a case involving a first petition for post-conviction review where the defendant was sentenced under the career offender Guideline. The government isn’t waiving procedural objections in cases where the defendant was sentenced under the career offender Guideline, so such a case could make its way to the Court. But I don’t think this is the best vehicle for the Court to weigh in on whether it has “made” Johnson retroactive for two reasons.

One is time. The window for prisoners to file second or successive petitions may be closing rapidly, and there aren’t plausible candidates for certiorari that would allow the Court to “make” Johnson retroactive within the time window in which prisoners may file second or successive petitions for post-conviction review. Petitioners have one year from the date the Supreme Court announced a new rule to file a second or successive petition for post-conviction review. 28 U.S.C. 2244(d)(1); 28 U.S.C. 2255(f)(3). Dodd v. United States held that the statute of limitations begins to run “one year from the date on which the right [the prisoner] asserts was initially recognized by this Court,” rather than one year from the date on which the Supreme Court made the right retroactive.

Prisoners therefore have one year from the date on which Johnson was decided to file a second or successive petition. Any petition filed after June 2016 may be time-barred. (Doddrecognized “the potential for harsh results,” describing how “[A]n applicant who files a second or successive motion seeking to take advantage of a new rule of constitutional law will be time barred except in the rare case in which this Court announces a new rule of constitutional law and makes it retroactive within one year.”)

Therefore, if the Court plans to “make” Johnson retroactive, it must do so shortly in order to issue a decision within the one-year period of time during which requests to file second or successive petitions would be timely. If the Court “makes” Johnson retroactive after June 2016, that may be of no use to prisoners attempting to file second or successive petitions, because the one-year statute of limitations—which ran from the date the Court recognized the right in Johnson—would have expired. (The government may, however, be able to waive a statute of limitations defense.)

For these reasons, “making” Johnson retroactive by applying the rule to a case on collateral review involving the Guidelines is not a real solution. No court of appeals has made a determination about whether the “rule” that the career offender Guideline applies retroactively in a case involving the career offender Guideline. Some courts have granted authorization to file second or successive petitions in cases involving the career offender Guideline. But the Government can’t file a petition for certiorari to these decisions. Without a clear split and a reasoned court of appeals decision either way, there isn’t a viable candidate for certiorari for the Supreme Court to take before the window to file a second or successive petition for post-conviction review expires.

One aside: I said the window to file a second or successive petition “may” be closing rapidly because the Supreme Court has recognized that AEDPA’s statute of limitations is tolled in some circumstances. In particular, AEDPA’s statute of limitations is tolled where there has been a “fundamental miscarriage[] of justice,” which includes claims of actual innocence. McQuiggin v. Perkins held that “[t]he miscarriage of justice exception …. applies to … cases in which new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the prisoner].” (Although McQuiggin specifically concerned the statute of limitations in 28 U.S.C. §2244, there is little reason to think it would be tolled for innocence under that provision, which is applicable to state prisoners, but not under §2255, which is applicable to federal prisoners.) It’s possible that the Supreme Court would say that the miscarriage of justice exception also applies to cases where a prisoner could not have been subjected to his or her sentence. If Johnson means that prisoners sentenced under ACCA’s residual clause are actually innocent of their sentences, their actual innocence could excuse their untimely petitions for collateral review.

But the Supreme Court hasn’t yet said whether the miscarriage of justice/actual innocence exception applies to cases where a prisoner is innocent of their sentence. The possibility that it may do so at some indefinite point in the future is not a particularly good reason for the Court to take a wait-and-see approach to whether Johnson has been made retroactive. For one thing, an opinion holding that a claim of “actual innocence” regarding a non-capital sentence tolls the statute of limitations for second or successive petitions may come too late for many prisoners. After Johnson, the statutory maximum term of imprisonment for some prisoners is ten years; the remedy for a Johnson claim is to ensure that prisoners convicted of being a felon in possession of a firearm do not serve more than ten years in prison. And the prisoners who need the Supreme Court to “make” Johnson retroactive are those who have already filed at least one post-conviction review—that is, prisoners who have already served some of their sentence. If the Supreme Court waits for a circuit split to develop on the actual innocence question, many of them may have already served more than the ten years that is the statutory maximum for their offense of conviction. Some prisoners have already served more than ten years. Joint Emergency Motion in United States v. Striet (“Mr. Striet has already served more time than the maximum term for the offense of conviction.”); Joint Emergency Motion in Reliford v. United States(“Reliford has already served more time than the maximum term for the offense of conviction.”).

More than that, a case involving the Guidelines is an unappealing candidate for certiorari because in order to “make” Johnson retroactive, the Supreme Court may have to decide several other questions a case involving the Guidelines could raise. One, is the career offender Guideline invalid after Johnson? Two, is the rule that the career offender Guideline is invalid retroactive? Three, is the claim that the career offender Guideline is invalid cognizable in section 2255 proceedings? Four, has the prisoner procedurally defaulted the claim that the career offender Guideline is invalid—by failing to make the argument on direct appeal—and, if so, has the prisoner shown cause and prejudice to excuse the default? The specter of these additional questions makes a case involving the Guideline an unattractive candidate for certiorari given that the Court typically likes to decide cases limiting to one discrete issue.

Fully Litigated Second Petition For Post-Conviction Review

The Court could instead take a second petition for post-conviction review after the petition has been fully litigated. That is, it could grant review in a case where a court of appeals authorized the filing of a second or successive petition and the district court and court of appeals then heard the petition on the merits. See, e.g., Tyler v. Cain, 533 U.S. 656 (2001) (reviewing post-conviction proceedings that had been adjudicated on merits after permission was granted to file such a petition). But the sheer length of time it would take these petitions to reach the Court would mean that such a decision would certainly happen outside of the year-long window prisoners have to file second or successive petitions. Thus, even if the Court “makes” Johnson retroactive, a second or successive petition raising a Johnson claim would not be timely. And a decision saying that the Court has made Johnson retroactive might not provide meaningful relief for the defendants who have already served close to the ten-year statutory maximum term of imprisonment for their offense.

Extraordinary & Original Writs

The last, and best, option the Supreme Court has to ensure that prisoners have a remedy for Johnson claims is to use one of the extraordinary writs--specifically, an original writ of habeas corpus-- to hear a case involving a second petition for post-conviction review. The Court could use its ability to entertain petitions for original writs of habeas corpus to grant review in a case that would allow it to “make” Johnson retroactive.

When Felker v. Turpin upheld the provision barring Supreme Court review of court of appeals’ determinations about whether to authorize the filing of a second or successive petition for post-conviction review, Felker specifically noted that §2244 did not repeal the Court’s jurisdiction to entertain “original” petitions for habeas corpus—petitions that are filed directly in the Supreme Court (under §2241).

Back in April, I argued that section 2241 should be a backstop to ensure that defendants who received illegal sentences under Johnson could be resentenced. That need has become all the more pressing in light of the government’s litigation posture, which ensures that no first petition for post-conviction review will reach the Supreme Court in time for the Court to “make” Johnson retroactive within the time window during which prisoners may file second or successive petitions for post-conviction review. More than that, a Johnson claim is unique in several ways—it affects the duration of a prisoner’s sentence, which means there will only be prisoners with Johnson claims—at least based on ACCA’s residual clause—for a finite period of time after Johnson. And because Johnson affects the duration of a prisoner’s sentence, a remedy for a Johnson claim is effective only if it becomes available soon enough to ensure a prisoner does not serve more than the ten years the statute authorizes for the offense of conviction. There is therefore only a short window in which prisoners will have Johnson claims, and a similarly short window in which the Court could ensure all prisoners with Johnson claims have a meaningful remedy.

Steve Vladeck has argued, in an amicus brief in support of one of the petitions seeking an original writ of habeas corpus, a forthcoming federal sentencing reporter piece, and several blogposts, that this issue—whether the Supreme Court has “made” Johnson retroactive—is precisely the kind of case Felker had in mind when it suggested original writs were still available. Felker suggested original writs under section 2241 would be necessary in some cases to avoid constitutional problems that would arise if the Supreme Court could not otherwise provide a prisoner relief to which he or she was entitled. And, as Vladeck explains, there are reasons why an original writ makes sense here.For example, AEDPA restricts the standards under which federal courts review claims of error where a claim has been adjudicated by a state court. But the Court’s review of whether it has “made” Johnson retroactive would be de novo. Finally, there have been only a few situations in which federal courts have divided over whether the Supreme Court has “made” a rule retroactive. Therefore, using the Court’s original habeas jurisdiction to resolve those disputes would not lead to a large number of original habeas petitions.

There are two other kinds of writs the Court could issue--a writ of mandamus, or a writ of certiorari before judgment in the district court case that held Johnson was not retroactive. See Harrimon, supra. It's not clear that either of these two writs are any better, or more viable alternatives than original writs of habeas corpus. The Supreme Court's own rules reserve all of these writs for very limited circumstances. It's also not clear whether there are any great vehicles seeking these two kinds of writs that are currently before the Court. Thus, if the Court waits for a petition for a writ of mandamus, or a petition seeking certiorari before judgment, it may not be able to "make" Johnson retroactive within the one-year window in which AEDPA allows prisoners to file successive petitions for post-conviction review.

***

Felker noted that, under the Supreme Court’s own rules, original petitions for habeas corpus are granted only in “exceptional circumstances.” The circumstances surrounding the retroactivity of Johnson—and whether the Supreme Court has made it retroactive—are exceptional. There is a clear circuit split that has developed in more than half the courts of appeals regarding whether the Supreme Court has “made” Johnson retroactive. The government’s litigation posture—and the near unanimity among the courts about whether Johnson is retroactive—mean there are no other vehicles for the Supreme Court to “make” Johnson retroactive aside from an original writ of habeas corpus. The rule in Johnson also concerns the legality of a term of years sentence, and so in order to provide relief for these claims the Court has to act quickly to ensure that prisoners do not serve more than their lawful term of imprisonment. We'll know in a month or so whether it will do so.