Second or Successive § 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

Pakala v. United States, No. 15-1799 (1st Cir.)

  • Opinion (Oct. 20, 2015) (certifying 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 granting application to file a successor) (internal quotation marks omitted)
  • Noting that the retroactivity question has “divided the circuits to have considered it.”

Powell v. United States, 15-2202 (1st Cir.)

Rivera v. United States,  No. 13-4654 (2d Cir.)

  • Order (Oct. 5, 2015) (recalling the mandate, reinstating the proceeding, and granting motion for leave to file successor “because Petitioner has made a prima facie showing that he has satisfied the successive motion requirements with respect to his proposed claim based on Johnson“)
  • District Court Order Granting Petition and Immediate Release (Oct. 6, 2015) (“I agree with the parties that Johnson has announced a new rule of constitutional law that should apply retroactively to cases on collateral review.”)

In re Scott, No. 15-291 (4th Cir.) 

In re Boyett, No. 15-5824 (6th Cir.)   

  • Response of the United States (Sept. 2, 2015) (taking position that Johnson announced a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable)

In re Windy Watkins, __ F.3d __, No. 15-5038 (6th Cir. Dec. 17, 2015)

  • Opinion (holding that Johnson announced a substantive rule that the Supreme Court has made retroactive on collateral review, and therefore authorizes the petitioner to file a second or successive § 2255).
  • Agrees with both the government and Watkins “that Johnson announced a substantive rule that the  Supreme Court has made retroactive on collateral review because Johnson’s holding prohibits a certain category of punishment for a class of defendants based on their status: increased sentences for those defendants ‘whose predicate offenses only qualify as such under the residual clause.’”
  • “Because Johnson prohibits the imposition of an increased sentence on those defendants whose status as armed career criminals is dependent on offenses that fall within the residual clause, we agree with the Seventh Circuit that ‘[t]here is no escaping the logical conclusion that the [Supreme] Court itself has made Johnson categorically retroactive to cases on collateral review.’”
  •  Makes no distinction between Williams (5th), an ACCA case, and Rivero (11th), a career offender case, and states categorically that the reasoning in both opinions “miss[es] the point”:  “Congress’ ability to amend ACCA in a manner that would constitutionally impose the category of punishment Watkins seeks to challenge is irrelevant to the retroactivity analysis, and neither the Fifth Circuit nor the Eleventh Circuit cites any authority for sidestepping the retroactive application of a substantive rule on the grounds that the law which the rule rejected could be amended at a later date.”

Price v. United States, 795 F.3d 731 (7th Cir. 2015)

Hoskins v. United States, No. 15-2736 (7th Cir.)

  • Order (Sept. 3, 2015) (granting application for district court to consider successor)

Wilson v. United States, No. 15-2942 (8th Cir.)

Reliford v. United States, No. 15-3224 (8th Cir.)

Woods v. United States, No. 15-3531 (8th Cir.)

  • Opinion (Nov. 20, 2015) (to be published) (“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, that was previously unavailable.'”)

Striet v. United States, No. 15-72506 (9th Cir.)

 Waits v. United States, No. 15-72596 (9th Cir.)

United States v. Jackson, No. 15-8098 (10th Cir.)

In re Gieswein, __F.3d__, 2015 WL 5534388 (10th Cir. Sept. 21, 2015) (denying authorization of a successor on the ground that the Supreme Court did not “make” Johnson retroactive)

  •  This memo explains why Gieswein was wrongly decided.  DOJ agrees.

18 U.S.C. § 924(c)

Freeman v. United States, No. 15-3687 (2d Cir. Jan. 26, 2016)

  • Order (granting motion for leave to file successive § 2255 motion where petitioner was convicted under 18 U.S.C. § 924(c)(1)(A)(iii) based on a conspiracy to commit Hobbs Act robbery).

In re Chapman, No. 16-246 (4th Cir. May 3, 2016)

  • Order (granting motion for leave to file successive § 2255 motion where petitioner was convicted under 18 U.S.C. § 924(c) based on a conspiracy to provide material support to a terrorist organization)

In re Tyson, No. 16-772 (4th Cir. May 31, 2016)

  • Order (authorizing second or successive § 2255 based on prima facie showing that the rule announced in Johnson and “held to apply retroactively to cases on collateral review by [Welch] may apply to his case,” “thus permitting consideration of the motion by the district court in the first instance” where petitioner was convicted under § 924(c) based on attempt to commit Hobbs Act robbery)

Ruiz v. United States, No. 16-1193 (7th Cir. Feb. 19, 2016)

  • Order (noting that the residual clause at 18 U.S.C. § 924(c)(3)(B) “is identical to 18 U.S.C. § 16(b), which we held is unconstitutionally vague under Johnson.  United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015),” and granting application for leave to file successive § 2255)

Berry v. United States, 16-71332 (9th Cir. June 2, 2016)

  • Order (authorizing second or successive § 2255 based on prima facie showing under Johnson, relying on the holding in Welch that “Johnson announced a new substantive rule that has retroactive effect in cases on collateral review”  where petitioner was convicted under § 924(c) based on armed bank robbery and malicious destruction of property in violation of 18 U.S.C. § 844(i))

In re Pinder, __ F.3d __, 2016 WL 3081954 (11th Cir. June 1, 2016) (No. 16-12084)

  • Published Order (noting that the residual clause at § 924(c) is “very similar” to the residual clause invalidated at § 924(e) and that “the law is unsettled on whether the rule announced in Johnson invalidates Pinder’s sentence,” and authorizing second or successive § 2255 because “[w]hat’s clear [] is that Pinder has made a prima facie showing” that he meets the gatekeeping requirements of § 2255(h); petitioner was convicted under § 924(c) based on conspiracy to commit Hobbs Act robbery)

Guidelines — Data Analyses

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 (effect of career offender status 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 — Circuit Courts Authorizing District Court to Consider Second or Successive

Vargas v. United States, 2017 U.S. App. LEXIS 17158 (2d Cir. May 8, 2017) (No. 16-2112)

  • Order Granting Motion (May 8, 2017) (“Although the Supreme Court held in Beckles v. United States that ‘[b]ecause they merely guide the district courts’ discretion, the Guidelines are not amenable to a vagueness challenge,’ Beckles did not clearly foreclose the argument that this reasoning is inapplicable to the Petitioner’s circumstances, given that his [480-month career offender] sentence was imposed prior to United States v. Booker, which rendered the previously mandatory Guidelines discretionary.”) (internal citations omitted).

In re Hoffner, __ F.3d __, 2017 WL 3908880 (3d Cir. Sep. 7, 2017) (No. 15-2883)

  • Slip opinion (holding that petitioner made a prima facie showing that he was not asserting a new rule under Teague and remanding to district court to decide the merit of the motion).
  • Suggesting there would be no need for the district court to break new ground when deciding whether authorization under § 2255(h)(2) is appropriate.

Moore v. United States, __ F.3d __, 2017 WL 4021654 (1st Cir. Sept. 13, 2017) (No. 16-1612)

  • Slip opinion (certifying that petitioner’s successive motion satisfies § 2255(h)(2)
  • “We are not sufficiently persuaded that we would need to make new constitutional law to hold that the pre-Booker SRA fixed sentences.”

Guidelines — Post-Beckles — District Courts Deciding that the § 2255(h)(2) Standard Is Met

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

Guidelines — Pre-Beckles — Circuit Courts Authorizing District Court to Consider Second or Successive § 2255

Blow v. United States, No. 16-1530 (2d Cir. ) (career offender)

  • Order Granting Motion (July 14, 2016)  (“[T]here is substantial disagreement among other circuits on the question on which the Supreme Court has granted certiorari in Beckles. On consideration, we conclude that Blow has made a prima facie showing that his claim satisfies § 2255(h) and warrants fuller exploration by the district court. . . . [T]he district court is instructed to hold Blow’s § 2255 motion in abeyance pending the outcome of Beckles).

In re Hubbard, No. 15-276 (4th Cir.) (career offender)

  • Published Opinion (June 8, 2016)
  • 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.”
  • Hubbard has made a prima facie showing that his motion contains a claim that relies on a new rule of constitutional law that the Supreme Court made retroactive that was previously unavailable.

In re Holston, No. 16-50213 (5th Cir.) (career offender)

  • Order (May 17, 2016) (“Without expressing an opinion regarding the merits of Holston’s claims or whether Johnson applies to § 4B1.2(a)(2), we conclude that Holston has made a sufficient showing of possible merit to warrant a fuller exploration by the district court.”) (internal quotation marks omitted).
  • Additional SoS authorizations by the Fifth Circuit:  In re Rodriguez, No. 16-10393 (5th Cir. May 17, 2016); In re Marmino, No. 16-50302 (5th Cir. May 26, 2016); In re Naranjo, No. 16-50382 (5th Cir. June 3, 2016); In re Hardy, No. 16-60185 (5th Cir. May 26, 2016);In re Green, No. 16-30219 (5th Cir. June 6, 2016)

In re Swain, No. 15-2040 (6th Cir.)  (career offender)

  • Order (Feb. 22, 2016) (“A claim based on Johnson may warrant the filing of a second or successive § 2255 motion because that case announced a new, previously unavailable, and retroactively applicable rule of constitutional law.”)
  • Guidelines were mandatory in this case, but court said nothing about it.

In re Grant, No. 15-5795 (6th Cir.) (career offender)

  • Order (Mar. 07, 2016) (“We may authorize the filing of a second or successive § 2255 motion to vacate sentence if the applicant makes a prima facie showing that the motion contains a ‘new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.’ Grant’s motion satisfies this criteria.” (internal citation omitted))

In re Homrich, No. 15-1999 (6th Cir.) (career offender)

  • Order (Mar. 28, 2016) (granting authorization to file a second or successive § 2255 motion “based on Johnson, which announced a new, retroactively applicable, rule of constitutional law”)
  • Responded to government’s argument that Johnson is “procedural” as applied to the guidelines because the guidelines do not change statutory to the guidelines by pointing out that the guidelines were mandatory in this case.

In re Patrick,  __ F.3d __ (6th Cir. Aug. 12, 2016) (No. 16-5353)

  • Published Opinion (agreeing with the Fourth Circuit’s decision in Hubbard and holding that “the Supreme Court’s rationale in Welch for finding Johnson retroactive applies equally to the Guidelines”)

Best v. United States, No. 15-2417 (7th Cir.) (career offender)

  • Order (Aug. 5, 2015) (granting application to authorize district court to consider successor because “Johnson announced a new substantive rule of constitutional law [] and Best has made a prima facie showing that he may be entitled to relief”)
  • Guidelines were mandatory in this case, but court said nothing about it.

Stork v. United States, No. 15-2687 (7th Cir.) (§ 2K2.1)

  • Order (Aug. 13, 2015) (authorizing a successor in a case in which the prisoner had been sentenced under § 2K2.1 when the guidelines were advisory because “Johnson announced a new substantive rule of constitutional law made retroactive to cases on collateral review by the Supreme Court”)

Swanson v. United States, 15-2776 (7th Cir.) (career offender)

Spells v. United States, No. 15-3252 (7th Cir.)  (career offender and ACCA)

  • Order Authorizing District Court to Entertain Second Motion (Oct. 22, 2015) (where government “concedes that Spells has made a prima facie showing that the armed-career-criminal enhancement violates Johnson, but protests that Johnson is not retroactive to sentences imposed under the guidelines[,] [w]e believe the government’s contentions would be better addressed by the district court after adversarial testing . . . .”)

Zollicoffer v. United States, 15-3125 (7th Cir.) (career offender)

  • Order Authorizing District Court to Consider Successor (Oct. 20, 2015) (“Johnson announced a new substantive rule of constitutional law, so it has retroactive application. The government, without waiving possible defenses, concedes that Zollicoffer has made a prima facie showing that he may be entitled to relief under Johnson.” (internal citation omitted)).

Wilson v. United States, No. 15-73778 (9th Cir. June 1, 2016) (career offender)

  • Order (authorizing second or successive § 2255 based on prima facie showing under Johnson, relying on the holding in Welch that “Johnson announced a new substantive rule that has retroactive effect in cases on collateral review”)

Williams v. United States, No. 16-70558 (9th Cir. June 1, 2016) (career offender)

  • Order (authorizing second or successive § 2255 based on prima facie showing under Johnson, relying on the holding in Welch that “Johnson announced a new substantive rule that has retroactive effect in cases on collateral review”)

In re Encinias, No. 16-8038 (10th Cir.) (career offender)

  • Published Order (Apr. 29, 2016) (assuming without question that Welch made Johnson retroactive to all cases and authorizing successor § 2255 motion)

In re Charles Booker, No. 16-3018 (D.C. Cir. June 10, 2016) (career offender)

  • Order (“Petitioner also alleges his sentence as a career offender under U.S.S.G. § 4B1.1 was based on the [CO] residual clause [], which is identical to the residual clause at 924(e) Petitioner has made a prima facie showing that his claims rely on a new, previously unavailable rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.”)