First § 2255

IF THE GOVERNMENT CLAIMS THAT THE RULE IN JOHNSON IS NOT RETROACTIVE “AS APPLIED” IN GUIDELINES CASES, CONTACT Amy Baron-Evans at abaronevans@gmail.com. 

ACCA

Sample Supplement to First § 2255

Brief of the Federal Public & Community Defenders & the National Association of Federal Defenders as Amici Curiae in Support of PetitionerWelch v. United States, 136 S. Ct. 1257 (2016) (No. 15-6418)

United States v. Imm, Nos. 14-4809, 14-4810 (3d Cir.)

United States v. Richards, No. 2:05-cr-10 (D. Maine)

Sykes v. United States, No. 1:08-cr-00095 (S.D. Ind.)

Osborne v. United States, No. 3:15-cv-03214 (C.D. Ill.)

Guidelines — Sample Pleading, FPD/NAFD Amici Briefs, and Data Analyses

Sample First § 2255 (rev. 5/24/16) [For an updated version incorporating the Supreme Court’s decision in Beckles (Mar. 6, 2017), contact Amy Baron-Evans at abaronevans@gmail.com.]

Brief of the Federal Public & Community Defenders & the National Association of Federal Defenders as Amici Curiae in Support of PetitionerBeckles v. United States, No. 15-8544 (Aug. 18, 2016)

Guideline Resentencings After Johnson – Government Appeals Noted (adapted from Appendix to Petitioner’s Reply Brief, Beckles v. United States, No. 15-8544 (Nov. 17, 2016))

Brief of the Federal Public & Community Defenders & the National Association of Federal Defenders as Amici Curiae in Support of PetitionerJones v. United States, No. 15-8629 (Apr. 21, 2016)

Effect of Career Offender Status (comparison of above-guideline rates, average sentences imposed, and guideline minimums for non-career offenders and career offenders; percentage of non-career drug offenders who received sentences as high as the guideline minimum for comparable career offenders).

Number of Defendants Classified as Career Offenders in FY 2008-2014 and Likely to Remain in Prison (estimating that about 14,928 of offenders sentenced as career offenders from FY2008 through FY2014 are likely still in prison).

Data Analyses – Drug Cases (effect of career offender status, sentences below the Armed Career Offender mandatory minimum, and number of career offenders likely still in prison).

Data Analyses – Non-Drug Cases (effect of career offender status).

Data Analyses (effect of career offender status in drug cases, sentences below the Armed Career Offender mandatory minimum, and number of career offenders likely still in prison).

Comparison of Average Sentence for Drug Defendants (Career Offender and Non-Career Offender) — FY 2005-2014 (graphical illustration).

Guidelines — Post-Beckles Cases Holding Johnson Applies Retroactively to the Mandatory Guidelines

Roy v. United States, No. 00-cr-40013 (D. Mass. Oct. 13, 2017)

  • Memorandum and Order (holding Johnson applies to mandatory guidelines, relying on Moore and rejecting Brown and Raybon)
  • “Stated simply, [the retroactive] rule is as follows: in Johnson II, the Supreme Court held that the residual clause of the ACCA is too vague to provide a standard, consistent with due process, ‘by which courts must fix sentences.'”
  • This rule applies retroactively to the mandatory guidelines because “the task at hand is not fashioning a new rule of constitutional law, but rather simply interpreting a statute, the SRA . . . . The pre-Booker SRA made the Guidelines binding on judges, making them vulnerable to vagueness challenges under the rule adopted in Johnson II.
  • The opinion has an unrelated error–it fails to recognize that Massachusetts Reckless Assault & Battery is not a crime of violence, and so needlessly goes through a who-bears-the-Shepard-burden prejudice analysis. [Possible motion for reconsideration on this point despite finding that prejudice was satisfied.]

Reid v. United States, No. 03-cr-30031 (D. Mass. May 18, 2017)

  • Memorandum and Order (holding Johnson applies retroactively in mandatory guidelines cases)
  • “[I]t could hardly be clearer that Beckles does not bar Petitioner’s claim for relief under 28 U.S.C. § 2255 regarding a sentence imposed prior to Booker under the then-mandatory Career Offender provisions of the Sentencing
    Guidelines.”
  • “The fact that in 2004 this court had the very limited power to ‘depart’ from the mandatory Sentencing Guidelines range in rare instances — and exercised that power in this case — does not alter the analysis. Beckles itself no where suggests that the narrow power to depart prior to Booker rendered the Guidelines something other than mandatory for purposes of constitutional analysis. Indeed, the clear import of Beckles is precisely to the contrary.”
  • “No other argument offered by the government in opposition to Petitioner’s claim for relief has merit. Petitioner is therefore entitled to resentencing.”

United States v. Tunstall, No. 3:00-cr-00050 (S.D. Ohio June 16, 2017) (USMJ Merz)

  • Report and Recommendation (holding Johnson applies retroactively in mandatory guideline cases)
  • In this second or successive § 2255, which was authorized by the Sixth Circuit before Beckles, ruling that the § 2255(h)(2) standard is met.
  • Rejecting the government’s argument that the § 2255 motion “is barred by the doctrine of Teague v. Lane, 489 U.S. 288 (1989)”:  “The Supreme Court itself has held Johnson enunciates a new substantive rule applicable on collateral review. Welch, supra. The residual clause language in the Career Offender Guidelines and in the ACCA are textually identical. Because the pre-Booker mandatory Sentencing Guidelines are sufficiently statute-like to be subject to vagueness analysis, Johnson applies directly: there is no need to wait for further Supreme Court analysis explicitly extending Johnson to the pre-Booker Guidelines.”

Sarracino v. United States, No. 16-cv-734, No. 95-cr-210, 2017 U.S. Dist. LEXIS 98165 (D.N.M. June 26, 2017) (USMJ Garza)

  • Holding that Johnson applies retroactively in mandatory guidelines cases.
  • “Considering Johnson, Beckles, and Booker, the Court finds Johnson applies to the mandatory Guidelines. The Beckles opinion rests almost exclusively on the premises that the advisory Guidelines do not bind the district court’s discretion and do not have the force and effect of law. But Booker makes clear that the mandatory Guidelines severely limited judges’ discretion and had the force and effect of laws that fix the permissible range of sentences. Because Petitioner was sentenced pre-Booker, Beckles is inapplicable to his case. The Court therefore finds that the Johnson holding applies to the mandatory Guidelines and Petitioner’s sentence.”  Id. at *8.
  • “[A]pplying Johnson to § 4B1.2(a)(2) operates as a substantive rule that applies retroactively on collateral review to mandatory Guidelines cases.”  Id. at *12.
  • Concluding that petitioner is ineligible for relief, however, because his convictions for federal second degree murder, federal assault with a dangerous weapon, and New Mexico voluntary manslaughter still qualify as “crimes of violence” under the force clause.  [Note: The court’s force clause analysis is questionable.]

United States v. Costello, No. 1:02-cr-089, 2017 WL 2666410 (S.D. Ohio June 21, 2017) (USMJ Merz)

  • Holding that Johnson applies retroactively in mandatory guidelines cases.
  • “For reasons explained in United States v. Tunstall, [] conclud[ing] that the vagueness doctrine applies to the mandatory pre-Booker Sentencing Guidelines because they are sufficiently like a statute in the way they constrain judicial discretion and that the residual clause of the Guideline Career Offender requirement, which is textually the same as the clause declared unconstitutionally vague in Johnson, supra, is also unconstitutionally vague. Because that is a substantive change in the law, made retroactively applicable on collateral review by the Supreme Court, Costello’s challenge is not barred by Teague[.] The holding of the Sixth Circuit in United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016), that the residual clause of the career offender Sentencing Guideline is unconstitutional on the same basis as Johnson is not abrogated by Beckles [], because Beckles applies only to the advisory Sentencing Guidelines after Booker.” (Some citations omitted.)

United States v. Walker, No. 1-93-cr-00333, 2017 WL 3034445 (N.D. Ohio July 18, 2017)

  • “[U]ntil the Sixth Circuit or Supreme Court holds otherwise, this Court must accept . . . that the mandatory Guidelines are subject to challenges under Johnson.”
  • “Regarding retroactivity, the Court . . . adopts the reasoning expressed by Magistrate Judge Merz [in Tunstall, supra].”

United States v. Parks, No. 1:03-cr-00490 (D. Colo. Aug. 1, 2017)

  • Order (“I find that the Beckles decision and its rationale do not apply to the mandatory Guidelines and defendants, such as Mr. Parks, that were sentenced under such Guidelines. Indeed, I agree with Mr. Parks that its reasoning supports the conclusion that Johnson applies to mandatory Guidelines.”)
  • Concluding that Johnson applies retroactively to mandatory guidelines cases.
  • Finding cause and prejudice to overcome procedural default.

United States v. Mock, No. 2:02-cr-0102-RHW, 2017 WL 2727095 (June 23, 2017)

  • Concluding that “the Supreme Court’s decision in Beckles does not apply to sentences imposed under the U.S. Sentencing Guidelines pre-Booker, and does not preclude a Johnson claim based on an individual sentenced pre-Booker.”
  • Applying Johnson and holding that assault convictions do not qualify as crimes of violence, but finding error harmless due to two qualifying drug offenses.

Guidelines — “Commentary” offenses at USSG § 4B1.2

[For sample briefing on commentary offenses in mandatory guideline cases after Beckles, contact Amy Baron-Evans at abaronevans@gmail.com.]

Cases holding that once the residual clause is eliminated as void for vagueness, guideline commentary that listed offenses that do not qualify under the remaining two clauses has no independent legal force:

United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016) (No. 14-1216)

  • Slip opinion (“With § 4B1.2(a) stripped of its residual clause, the government’s position that we may rely on [the Commission’s listing of an offense in commentary that does not satisfy the force clause] to uphold Soto-Rivera’s designation as a Career Offender is hopeless.”)

United States v. Rollins, 836 F.3d 737 (7th Cir. 2016)  (No. 13-1731) (en banc)

  • Petition for Rehearing (Sept. 15, 2015)
  • Order Granting Panel Rehearing (Oct. 6, 2015)
  • En Banc Opinion (Aug. 29, 2016) (“[T]he application notes are interpretations of, not additions to, the Guidelines themselves; an application note has no independent force. [As an interpretation of the residual clause, Application Note 1 of 4B1.2] “has no legal force standing alone.  It follows, then, that because the residual clause in 4B1.2(a)(2) is unconstitutional, the application note’s list of qualifying crimes is inoperable and cannot be the basis for applying the career-offender enhancement.”).
  • Vacating and remanding for resentencing.

United States v. Bell, 840 F.3d 963 (8th Cir. 2016)

  • Agreeing with the First and Seventh Circuits that “[p]ost-Johnson[,]  § 4B1.2’s commentary, standing alone, cannot serve as an independent basis for a conviction to qualify as a crime of violence because ‘doing so would be inconsistent with the post-Johnson text of the Guideline itself'” (quoting Soto-Rivera, 811 F.3d at 60).

Guidelines — Pre-Beckles Cases Holding Johnson Applies Retroactively to the Guidelines

Moring v. United States, 2016 WL 918050, at *5 (W.D. Tenn. Mar. 8, 2016)

Williams v. United States, No. 1:07-cr-00238 (W.D.N.Y. Apr. 18, 2016)

United States v. Dean, No. 3:13-cr-137-SL, 2016 WL 1060229 (D. Or. Mar. 15, 2016)

  • Opinion and Order (holding that the rule in Johnson is substantive and thus applies retroactively to guideline cases on collateral review)

United States v. Ramirez, 1:10-cr-1008-WGY (D. Mass. May 24, 2016)

  • Memorandum of Decision (holding that Johnson as applied to the guidelines is a substantive rule, thus retroactive)

United States v. Boone, 2:12-cr-00162, Doc. 1227 (W.D. Pa. May 31, 2016)

In re Hubbard, No. 15-276 (4th Cir. June 8, 2016)

  • Published Opinion  (holding that Johnson is retroactive as a categorical matter under Welch, see pp. 18-19, and as applied to the Guidelines under Welch, see pp. 19-22, and rejecting the government’s arguments that Johnson as applied to the Guidelines is “procedural”)

Gibson v. United States, 3:15-cv-05737-BHS (W.D. Wash. June 15, 2016)

United States v. Arredondo, No. 2:12-CR-2084-SAB, 2016 WL 3448596 (E.D. Wash. June 20,  2016)

United States v. Suttle, No. 2:14-cr-00083 (E.D. Wash. June 20, 2016)

Townsley v. United States, 3:14-cr-00146-RPC (M.D. Pa. June 23, 2016)

  • Memorandum (holding that the rule in Johnson is substantive and retroactive in guideline cases)
  • “Because the Guidelines are the mandatory starting point for every sentence in a given case, because the sentencing judge must remain constantly mindful of them throughout the sentencing process [], and because the statistics indicate that correct calculation of the Guidelines range is a crucially important part of the sentencing process, we conclude that all those who have been sentenced under the unconstitutionally vague residual clause of USSG 4B1.2(a)(2) are entitled to collateral review of their sentences.”

Gilbert v. United States, No. CV15-1855-JCC, 2016 WL 3443898 (W.D. Wash. June 23, 2016)

United States v. Cloud, No. CR-10-2077-RMP, 2016 WL 3647785 (E.D. Wash. June 24, 2016)

United States v. Bercier, __ F. Supp. 3d __, 2016 WL 3619638 (E.D. Wash. June 24, 2016) (No. CR-13-102-RMP)

United States v. Plumlee, No. CR-10-2037-RMP (E.D. Wash. June 24, 2016)

United States v. Rios, No. CR-11-0197-RMP (E.D. Wash. June 24, 2016)

United States v. Castilleja, No. CR-12-2040-RMP (E.D. Wash. June 24, 2016)

United States v. Fleming, __ F. Supp. 3d __, 2016 WL 3647999 (E.D. Mich. June 28, 2016) (No. 08- CR-20275)

  • Published Opinion and Order Granting Motion (“As the Guidelines are not only the starting point for most federal sentencing proceedings but also the lodestar, this Court finds in the context of retroactivity that the fact that the Guidelines are not mandatory is a distinction without a difference.”) (internal quotation marks and citation omitted)

United States v. Stamps, 4:13-cr-238-CW (N.D. Cal.) (June 29, 2016)

United States v. Hawkins, 8:13-cr00343-JFB-TDT (D. Neb. June 30, 2016)

  • Memorandum and Order  (holding that the rule in Johnson is substantive and retroactive in guideline cases)
  • Johnson is a substantive rule whether a defendant is challenging an ACCA enhancement, a mandatory Guidelines enhancement, or an advisory Guidelines enhancement.  Striking down the identically worded and interchangeably interpreted residual clause in the Sentencing Guidelines would alter the range or conduct or the class of person that the Sentencing Guidelines punishes — ‘[t]hat is, the “substantive reach” of the Guidelines would be altered just as much as was true for the ACCA.’  If Johnson invalidates the Guidelines provision, ‘some crimes will no longer fit the Sentencing Guidelines’ definition of a crime of violence and will therefore be incapable of resulting in a career-offender sentencing enhancement.'” (Citing and quoting the Fourth Circuit’s decision in Hubbard, linked below.)
  • Rejecting stay pending Beckles

United States v. Ortega, CR-11-0087-RMP (E.D. Wash. July 1, 2016)

  • Order
  • Rejecting stay pending Beckles

United States v. Robinson, CR-13-0079-RMP (E.D. Wash. July 1, 2016)

  • Order
  • Rejecting stay pending Beckles

United States v. Edmondson, CR-13-0144-RMP (E.D. Wash. July 5, 2016)

  • Order
  • Rejecting stay pending Beckles

United States v. Hoopes, No. 3:11-cr-425-HZ  (D. Or. July 5, 2016)

  • Opinion and Order (concluding (1) that the rule in Johnson is substantive and applies retroactively to the guidelines; and (2) that the waiver does not apply to the unconstitutional sentence under the Ninth Circuit’s rule in United States v. Bibler, 495 F.3d 621 (9th Cir. 2007))
  • Rejecting stay pending Beckles

United States v. Beck, No. 8:13-cr-62-JFB-TDT, 2016 WL 3676191 (D. Neb. July 6, 2016)

United States v. Gentry, No. 3:12-cr-604-SI, 2016 WL 3647331 (D. Or. July 7, 2016)

United States v. Tomisser, 2:11-cr-2115, Slip. Op. at 7 n.1 (E.D. Wash. Jul. 11, 2016)

Fife v. United States, No. 1:03-cr-149 (S.D. Ohio July 13, 2016)

  • Order  (holding that Johnson‘s rule is substantive and retroactive in guideline cases)
  • Rejecting stay pending Beckles

United States v. Hill, No. 3:08-cr-116-WHR (S.D. Ohio July 14, 2016)

  • Report and Recommendation (“The Government’s extended argument that, while Johnson is substantive when applied to ACCA cases, it is procedural and therefore non-retroactive when applied to Guidelines cases is unpersuasive for the reasons given in Welch.”)

United States v. Teeples, No. 02-cr-45 (D. Mont. Aug. 3, 2016)

United States v. Velasquez, No. 08-cr-56 (E.D.N.Y. Aug. 4, 2016)

  • Memorandum Decision and Order (“At this point in time, there is little controversy as to whether Johnson applies to the Guidelines — ten of the eleven courts of appeals have either decided that Johnson applies to the Guidelines, accepted the government’s concession that it does, or assumed that it does.  … [N]ot withstanding the pendency of Beckles, a number of courts have decided to rule on the issue and have held that the residual clause is unconstitutional on a retroactive basis.”)
  • Declining to stay proceedings, and granting the motion.

United States v. Jackson, No. 2:10-cr-00235 (W.D. Pa. Aug. 4, 2016)

  • Memorandum Opinion (“Although the Court cannot say with certainty what Jackson’s sentence would have otherwise been, given the centrality of the Guidelines, it is highly unlikely that he would have received the same sentence if his initial advisory range had been 120 to 125 months [rather than the career offender guideline range of 262-327 months] . . . .”)
  • Denying government’s motion to stay.

United States v. Strickler, No. 2:11-cr-158 (W.D. Pa. Aug. 8, 2016)

  • Order (granting motion and stating intent to schedule resentencing)
  • Noting that a Beckles stay in some cases may be appropriate, but that “no stay has been requested here” and that in this case, “time sensitivity render[s] that course inappropriate.”

United States v. Rios, No. 2:13-cr-2059 (E.D. Wash. Aug. 12, 2016)

Lott v. United States, No. 2:10-cr-1095 (D.S.C. Aug. 17, 2016)

  • Order (citing Hubbard, and ordering the Government to submit briefing on whether prior qualifies as a “crime of violence” in the absence of the residual clause)

United States v. Daugherty, No. 4:07-cr-0087 (N.D. Okla. Aug. 22, 2016)

  • Opinion and Order (“The Court concludes that Johnson‘s invalidation of the residual clause in U.S.S.G. 4B1.2(a)(2) [] is a new substantive rule in this circuit that applies retroactively to cases on collateral review.”)
  • Adopting the Fourth Circuit’s reasoning in Hubbard 
  • Denying government’s request for stay

Stanfield v. United States, No. 2:05-cr-135 (D.S.C. Aug. 24, 2016)

  • Order (“Because the Government’s contention that Johnson did not apply to the Guidelines has been refuted by Hubbard, the Government is left without any tenable opposition to Stanfield’s motion.)
  • Granting motion

United States v. Anker, No. 2:14-cr-00144 (W.D. Pa. Aug. 25, 2016)

  • Opinion and Order (rejecting government’s waiver argument and granting motion)
  • Scheduling resentencing

United States v. Erskine Smith, No. 2:92-cr-146 (W.D. Pa. Aug. 25, 2016)

  • Opinion and Order (rejecting government’s contentions and granting motion)
  • Directing resentencing

United States v. Mack, No. 2:10-cr-00233 (W.D. Pa. Aug. 29, 2016)

  • Opinion and Order (rejecting government’s contentions and granting motion)
  • Scheduling resentencing

Andrews v. United States, No. 2:16-cv-00501 (D. Utah Sept. 9, 2016)

  • Memorandum Decision and Order (holding that “in light of Welch, Johnson’s application to the Guidelines is a substantive rule, which applies retroactively to Andrews’ § 2255 petition”; granting motion and vacating sentence)
  • Rejecting government’s argument that claim was procedurally defaulted; finding cause and prejudice under Reed
  • Stay pending Beckles denied

McKnight v. United States, No. 6:05-cr-06024 (W.D.N.Y. Sept. 13, 2106)

  • Decision and Order (“In short, Johnson is not a procedural decision as applied to the Guidelines.”) (internal quotation marks and citation omitted)
  • The government “has offered no arguments or caselaw to cause the Court to reconsider its previous ruling [in Williams v. United States, No. 07-cr-238 (W.D.N.Y. Apr. 18, 2016), posted above], which is bolstered by the recent Fourth and Sixth Circuit opinions in Hubbard and Pawlak, respectively.”
  • Ordering immediate transfer to the original sentencing judge for resentencing

United States v. Hotchkiss, No. 3:14-cr-00198 (S.D. Cal. Sept. 13, 2016)

  • Order (granting motion and setting for resentencing)
  • Collateral attack waiver in plea agreement did not waive right to collaterally attack the sentence as based on the unconstitutional residual clause, and procedural default excused under Reed v. Ross
  • Noting Beckles, but proceeding because “[a]ny resolution in favor of Hotchkiss would not likely come in time to address the enhancement of his sentence.”

United States v. Wall, No. 4:12-cr-20180 (E.D. Mich. Sept. 14, 2016)

  • Order Granting Defendant’s Motion to Vacate Sentence (relying on Pawlak to hold that Johnson applies to the guideline sentence, and relying on the Sixth Circuit’s authorization of a successive petition in In re Patrick to hold that Johnson applies retroactively to the guideline sentence)
  • Noting Beckles, but proceeding to the merits because “the law in our circuit is, for the time being, settled.”
  • Rejecting the government’s reliance on a blanket waiver of the right to collaterally attack the sentence, relying on United States v. McBride, 826 F.3d 293 (6th Cir. 2016), as “decided on indistinguishable facts”:  “Because McBride is applicable, Defendant’s appeal waiver is no bar to resentencing.”

United States v. Swerdon, No. 3:12-cr-0087 (M.D. Pa. Sept. 19, 2016)

  • Memorandum (holding that Johnson applies retroactively to the guideline sentence; exercising its “equitable discretion to relieve the defendant from his [collateral attack] waiver” because enforcing it would “create a miscarriage of justice”;  and finding no procedural default, both on the ground of miscarriage of justice and on the grounds of cause and prejudice)
  • Directing the parties to file sentencing memoranda for resentencing

Culp v. United States, No. 2:11-cr-293 (D. Utah Sept. 27, 2016)

  • Memorandum Decision and Order (agreeing that “the rule announced in Johnson is substantive as applied to the Guidelines,” reasoning that, just as the Supreme Court reasoned in Welch, “[r]emoving the residual clause from the Guidelines changes ‘the substantive reach of the [Guidelines], altering the range of conduct or the class of person that the [Guidelines] punishes'”).
  • Denying government’s motion to stay pending Beckles
  • Finding cause and prejudice to excuse procedural default

Guidelines — Ineffective Assistance of Counsel

Petrillo v. United States, No. 3:08-cv-01204 (D. Conn.)

  • Ruling in Petitioner’s Amended Motion Under § 2255 (Nov. 25, 2015) (career offender)
  • See pp. 13-17.  Court ruled that counsel was ineffective for failing to argue that the defendant’s prior Connecticut conviction for assault on a police officer did not qualify as a “crime of violence” under the career offender provision, even though no binding precedent had yet squarely decided whether the assault statute was a “crime of violence.”
  • Petitioner was prejudiced even though his prior conviction categorically qualified as a “crime of violence” under the career offender residual clause at the time of sentencing.  If he were sentenced today, he would not be a career offender in light of Johnson.  “[T]he current law should be applied retroactively for purposes of determining whether a party has demonstrated prejudice under Strickland‘s second prong.”