Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court’s current Term. But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn’t done in 90 years–issue an “original” writ of habeas corpus.
To unpack this dense but significant topic, Part I flags the origins of the problem–the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court’s fractured 2001 interpretation of those provisions
Comments
Asher — Good point about brevity of confinement. Plus, a state statute invalidated on vagueness grounds would invariably lead to a state collateral attack (and probably a successful one at that), which would obviate the need for resort to federal habeas. If only the Supreme Court had invalidated 18 USC 1346 instead of narrowing it — then we’d have the proper vehicle.
Posted by: Da Man | Nov 17, 2015 5:57:16 PM
Da Man: No, unless there were tons of habeas petitions by convicted loiterers. But my sense is that not many people are in prison for loitering, and fewer are in prison for long enough to bother with habeas. Now, I do think you’ll find that those loitering decisions have been applied on habeas review of convictions, postdating those decisions, under other statutes carrying longer sentences that prisoners argue are unconstitutionally vague, but to be fair to you that probably doesn’t show much because I doubt those decisions announce new rules about vagueness generally.
Posted by: Asher Steinberg | Nov 17, 2015 5:27:12 PM
James — True enough, but it doesn’t take away jurisdiction over the subsequent 2255 motion, which can come up through the ordinary district court –> circuit court –> certiorari process. So the government could theoretically wait until it loses on the merits in a post-Johnson 2255(h)(2) motion, and seek direct review of _that_. It’s because they won’t that this is an issue.
Posted by: Steve Vladeck | Nov 17, 2015 4:25:17 PM
Then wouldn’t there be tons of decisions retroactively applying SCOTUS decisions invalidating loitering statutes? I haven’t found any.
Posted by: Da Man | Nov 17, 2015 3:43:01 PM
Just a note that AEDPA takes away the Court’s certiorari jurisdiction over both the denial and the grant of certification (which only strengthens your argument).
Posted by: James F. | Nov 17, 2015 2:31:57 PM
Well, Summerlin says that substantive rules include “decisions that narrow the scope of a criminal statute by interpreting its terms,” which I’ll stipulate isn’t quite what Johnson’s doing, but isn’t an invalidation of a piece of a statute a fortiori substantive?
Posted by: Asher Steinberg | Nov 17, 2015 2:19:26 PM
“Granted that Johnson isn’t Roper. But I don’t think there’s any question that it’s substantive under Teague, Bousley, and Summerlin, and neither do the lower courts or the federal government.”
I don’t know that I would place enormous stock in the fact that the federal Government agrees that Johnson should apply retroactively. The decision does not make non-criminal what was formerly criminal; and it doesn’t sayd that a certain class of offender’s can’t be convicted or punished. So what you are really arguing is that Teague’s first exception includes any decision facially invalidating the statute that gave rise to the conviction or sentence–whatever the reason for the invalidation. I don’t think that it’s so clear cut.
Posted by: Da Man | Nov 17, 2015 1:51:22 PM
One of the biggest errors in the Fifth Circuit’s opinion is to limit Johnson to holding that the residual clause simply failed to provide the “notice” that due process requires of criminal statutes. That is entirely incorrect. The panel forgets (or ignores) that vagueness doctrine has two independent prongs: notice and arbitrary enforcement–the latter of which having been repeatedly emphasized in SCOTUS opinions as the more important prong. In Johnson, the Court made two things crystal clear. First, that the residual clause violated BOTH prongs. And second, that the more constitutionally disturbing violation was the arbitrary and subjective inquiry required in order to apply the clause to any given defendant.
When one considers Johnson’s actual holding and the Court’s analysis of the statute, it becomes almost indefensible to argue that the rule it announced was not substantive. To be sure, the Johnson court did not hold that Congress cannot impose a mandatory minimum prison term based on a recidivist punishment provision. But what the Court did hold is that Congress cannot write such a provision in a way that requires sentencing judges to ignore the particular defendant’s actual conduct in committing the predicate offense and instead determine whether the provision applies based on two subjective assessments of the universe of conduct that might (or might not) be involved when anyone commits that predicate offense: (1) what is the typical way this offense is likely to be committed; and (2) how much risk is inherent in that typical instance. That is a substantive rule that precludes Congress from enacting any statute that bases a mandatory minimum sentence on an inquiry that is necessarily arbitrary in each and every application.
The focus on “notice” in the cases deciding against retroactivity is, at best, either a misreading of Johnson itself or indicative of a larger misunderstanding of the vagueness doctrine in general.
Posted by: Evan | Nov 17, 2015 10:47:49 AM
Oh, you’re right about the clock problem, though I guess it’s possible that the Fifth Circuit could deny a COA on a first petition tomorrow, or in enough time that the Court could grant cert and review the denial this term. They ought to be able to act pretty speedily on such a request for a COA, given Higginbotham’s opinion. And so should the district courts below.
On the question of whether a Fifth Circuit panel would feel bound in a non-2255(h)(2) case by that opinion, the opinion barely even engages with the Tyler analysis; it seems to think that there’s an antecedent question of whether the rule applies retroactively and decides that question. That’s wrong (in the same way Saucier was – analytically at least – wrong), but it’s how the opinion goes. Now, if the opinion had been written by a very conservative panel of, say, the Sixth or Ninth Circuits, I could imagine some other panel of those circuits being disingenuous enough to misread the opinion as really just doing Tyler, or brash enough to say that the bulk of the opinion’s analysis is one huge dictum (which is arguable). But it’s very unlikely that there’s a Fifth Circuit panel out there that would do that, though conceivable.
Posted by: Asher Steinberg | Nov 16, 2015 11:23:34 PM
Asher: I certainly don’t disagree that it’s picayune.
As for the possibility of cert. from the Fifth Circuit’s rejection on the merits of a first 2255 motion based upon Johnson, that’s certainly _possible_, but (1) it assumes a Fifth Circuit panel will feel bound in a non-2255(h)(2) case by a 2255(h)(2) decision (I can imagine a world in which it wouldn’t); and (2) in any event, and more importantly, it would have to get to the Court _and_ be decided by June 26, 2016, because 2255(f)(3) starts the one-year clock for second-or-successive motions on “the date on which the constitutional right asserted was _initially recognized_ by the Supreme Court, if the right has been _newly_ recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” In other words, the clock runs from Johnson, not a subsequent decision on cert. to the Fifth Circuit. In the absence of a Fifth Circuit decision that can get the issue to the Court between now and then, doesn’t that only further justify original habeas?
Posted by: Steve Vladeck | Nov 16, 2015 10:26:06 PM
Your point is clear, but actually, I don’t know if you’re right that extraordinary relief is needed, given the Fifth Circuit’s ruling. Because couldn’t there be, in the Fifth Circuit, a first petition arguing Johnson’s retroactivity, and wouldn’t the Fifth Circuit be bound by Judge Higginbotham’s opinion to say Johnson is a procedural, non-watershed rule (or to deny a COA on the ground that Johnson’s retroactivity is settled there), and wouldn’t the Court have certiorari jurisdiction from that decision or that denial of a COA, on a first petition? I believe the answer to all of these questions is yes. If that’s right, then the Court has certiorari jurisdiction to decide Johnson’s retroactivity, very may well get a case out of the Fifth Circuit to decide just that, probably would grant to correct the Fifth Circuit’s “nut[ty]” view (though I’m not sure it’s that nutty), and, in doing so, would take care, going forward, of Johnson’s retroactivity for second/successive purposes.
Of course, they wouldn’t clear up Tyler that way, but just from reading these opinions I’m somewhat unconvinced that there’s really a sharp circuit split on what Tyler means. The basis for the Eleventh Circuit’s disagreement with the Seventh and First, for example, turns out to be incredibly picayune (and off-base). They say that, while there is a case, Bousley, that holds that a decision which narrows a statute’s scope by intepreting its terms is substantive, and while Summerlin repeats Bousley’s holding, and while Johnson narrowed the ACCA’s scope by interpreting its terms, and while you don’t need a case that specifically holds Johnson is retroactive to satisfy Tyler, Bousley retroactivity can’t count for second-or-successive purposes because Bousley happened to involve a pure question of statutory interpretation and isn’t a rule of constitutional law as 2244 requires (“a new rule of constitutional law”). Except, of course, 2244 only says that the rule that applies retroactively must be constitutional, not that the case that makes it retroactive must be constitutional, or must itself involve the retroactivity of a constitutional rule. If the latter were the case, maybe nothing would be retroactive for second-or-successive purposes because we don’t even know whether Teague is a constitutional rule.
Posted by: Asher Steinberg | Nov 16, 2015 10:17:51 PM
Asher: Fair enough re: the Fifth Circuit (although that’s nuts, in my view). But as I hope is clear, the importance of original habeas in a case like Butler doesn’t depend upon the _answer_ to whether Johnson is substantive. Either way, there’s a circuit split for which there’s no remedy other than extraordinary relief from the Supreme Court. I’d be awfully surprised if the Court says Johnson isn’t substantive, but that would be an important pushback against the five circuits that have granted post-Johnson certificates…
Posted by: Steve Vladeck | Nov 16, 2015 9:17:35 PM
About your last comment, I believe you’re misreading the Fifth Circuit’s decision (at least), which very clearly holds that Johnson isn’t substantive. As they creatively see it, Johnson merely held that the government can’t impose ACCA’s enhanced sentences under a certain procedure – the faulty notice given by the vague residual clause. As to the other circuits on that side of the split, the Tenth Circuit says it isn’t for them to decide, on a successive motion, whether Johnson is substantive, and expresses no view; the Eleventh Circuit says in dicta that it’s substantive, but then says (bafflingly) that it’s not the sort of substantive rule that the Court has specifically held post-Teague is substantive. So there’s actually a circuit split on whether Johnson’s substantive, and the two circuits that specifically rely on the held-by-the-Court requirement to deny relief do so for different reasons; the Tenth says the Court has to hold Johnson substantive, while the Eleventh says that the Court must pronounce some sub-category of substantive rules into which Johnson falls substantive.
Posted by: Asher Steinberg | Nov 16, 2015 9:08:27 PM
One tricky aspect of this would be deciding whether to take up an ACCA case or a guidelines career offender case. The latter would implicate another burgeoning circuit split (or possibly two) about whether vagueness doctrine applies to the guidelines at all, and whether guidelines error is ever cognizable on habeas. Albeit it would be possible for those issues to come to the Court outside the second or successive context, but just taking an ACCA second or successive case would leave them unresolved.
Posted by: Jay | Nov 16, 2015 9:04:55 PM
Granted that Johnson isn’t Roper. But I don’t think there’s any question that it’s substantive under Teague, Bousley, and Summerlin, and neither do the lower courts or the federal government. Indeed, in _first_ 2255 motions, it’s already being enforced retroactively without any real pushback. Of course, the Court could say on the merits that it _isn’t_ substantive, but that seems very unlikely–and would, in any event, be an important explanation of why everyone is wrong…
Posted by: Steve Vladeck | Nov 16, 2015 7:49:46 PM
You seem to take it as given that a decision invalidating part of a criminal statute, on procedural due process grounds, must be deemed substantive. That is quite a leap: the SCOTUS didn’t hold that armed career criminals can’t ever be given enhanced sentences- only that Congress must speak more clearly than it did. So I don’t place the rule in Johnson on par with the rule in say, Roper, which categorically prohibits capital punishment for the mentally retarded.
Posted by: Da Man | Nov 16, 2015 5:13:19 PM