Petition for Writ of Certiorari — Corey Kirkpatrick Sterling, Petitioner v. United States
Supreme Court briefJan 14, 2019
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No. ____
IN THE
Supreme Court of the United States
______________
COREY STERLING,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
______________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
______________
PETITION FOR A WRIT OF CERTIORARI
______________
MICHAEL CARUSO
FEDERAL PUBLIC DEFENDER
ANDREW L. ADLER
Counsel of Record
ASS’T FED. PUBLIC DEFENDER
1 E. Broward Blvd., Suite 1100
Ft. Lauderdale, FL 33301
(954) 356-7436
Andrew_Adler@fd.org
Counsel for Petitioner
JANUARY 14TH, 2019
QUESTION PRESENTED
In Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), this Court
declared unconstitutionally vague the residual clause of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). In Welch v. United States, 578 U.S. __,
136 S. Ct. 1257 (2016), this Court held that Johnson announced a new, substantive
rule of constitutional law that had retroactive effect in cases on collateral review.
In Beckles v. United States, 580 U.S. __, 137 S. Ct. 886 (2017), this Court held
that an identical residual clause contained in the Career Offender provision of the
Sentencing Guidelines was not unconstitutionally vague. U.S.S.G. § 4B1.2(a)(2).
The Court reasoned that the advisory Guidelines were not subject to the
constitutional vagueness prohibition at all because, unlike the ACCA, they do not
“fix the permissible range of sentences.” Beckles, 137 S. Ct. at 892.
However, the Court in Beckles “le[ft] open the question whether defendants
sentenced to terms of imprisonment before our decision in United States v. Booker,
543 U.S. 220 (2005)—that is, during the period in which the Guidelines did fix the
permissible range of sentences—may mount vagueness attacks on their sentences.”
Id. at 903 n.4 (Sotomayor, J., concurring in the judgment) (citations omitted).
The questions presented are:
1.
Whether U.S.S.G. § 4B1.2(a)(2)’s residual clause is void for vagueness
vis-à-vis defendants sentenced under the pre-Booker mandatory Guidelines.
2.
Whether the invalidation of § 4B1.2(a)(2)’s mandatory residual clause
has retroactive effect in cases on collateral review.
i
PARTIES TO THE PROCEEDINGS
The caption contains the names of all of the parties to the proceedings.
ii
TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. i
PARTIES TO THE PROCEEDINGS ............................................................................ ii
TABLE OF CONTENTS ............................................................................................... iii
TABLE OF AUTHORITIES .......................................................................................... v
PETITION FOR A WRIT OF CERTIORARI ................................................................ 1
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
LEGAL PROVISIONS INVOLVED .............................................................................. 1
STATEMENT OF THE CASE ....................................................................................... 2
A. LEGAL BACKGROUND .......................................................................................... 2
B. PROCEDURAL BACKGROUND ............................................................................... 6
REASONS FOR GRANTING THE PETITION ............................................................ 8
I.
THE CIRCUITS ARE DIVIDED ON THE QUESTIONS PRESENTED............................. 8
A.
The Seventh Circuit Has Declared the Guidelines’ Mandatory
Residual Clause Retroactively Void for Vagueness ................................ 8
B.
The
Eleventh
Circuit
Has
Held
That
the
Guidelines’
Mandatory Residual Clause Is Not Void for Vagueness and
That Any Such Ruling Would Not Have Retroactive Effect ................. 11
II. THE ELEVENTH CIRCUIT’S DECISION IN IN RE GRIFFIN CONTRAVENES THIS
COURT’S PRECEDENTS ...................................................................................... 12
A.
In re Griffin’s Vagueness Holding Contravenes Beckles ...................... 13
B.
In re Griffin’s Retroactivity Holding Contravenes Welch ..................... 20
III. THE QUESTIONS PRESENTED ARE OF GREAT PUBLIC IMPORTANCE
REQUIRING URGENT RESOLUTION BY THIS COURT ........................................... 23
IV. THIS CASE SQUARELY PRESENTS BOTH QUESTIONS FOR REVIEW ..................... 25
CONCLUSION............................................................................................................. 28
iii
TABLE OF APPENDICES
Appendix A: Opinion of the U.S. Court of Appeals for the
Eleventh Circuit (Oct. 18, 2018) ............................................................ 1a
Appendix B: Order of the U.S. Court of Appeals for the
Eleventh Circuit Granting Certificate of
Appealability (Dec. 6, 2017) ................................................................... 6a
Appendix B: Order of the U.S. District Cout for the
Southern District of Florida (June 20, 2017) ...................................... 13a
iv
TABLE OF AUTHORITIES
CASES
Beckles v. United States,
580 U.S. __, 137 S. Ct. 886 (2017) .................................................................... passim
Brown v. United States,
139 S. Ct. 14 (2018) .................................................................................................. 25
Brown v. United States,
868 F.3d 297 (4th Cir. 2017) .................................................................................... 24
Buford v. United States,
532 U.S. 59 (2001) ...................................................................................................... 3
Burns v. United States,
501 U.S. 129 (1991) ............................................................................................ 15, 16
Cross v. United States,
892 F.3d 288 (7th Cir. 2018) ............................................................................ passim
Glover v. United States,
531 U.S. 198 (2001) .................................................................................................. 25
Hawkins v. United States,
706 F.3d 820 (7th Cir. 2013) .................................................................................... 15
In re Baptiste,
828 F.3d 1337 (11th Cir. 2016) .................................................................................. 5
In re Griffin,
823 F.3d 1350 (11th Cir. 2016) ........................................................................ passim
In re Hubbard,
825 F.3d 225 (4th Cir. 2016) .................................................................................... 22
Irizarry v. United States,
553 U.S. 708 (2008) .................................................................................................. 16
v
Johnson v. United States,
576 U.S. __, 135 S. Ct. 2551 (2015) .................................................................. passim
Koon v. United States,
518 U.S. 81 (1996) .................................................................................................... 15
Miller v. Florida,
482 U.S. 423 (1987) .................................................................................................. 23
Mistretta v. United States,
488 U.S. 361 (1989) .................................................................................................. 14
Raybon v. United States,
867 F.3d 625 (6th Cir. 2017) .................................................................................... 24
Sessions v. Dimaya,
584 U.S. __, 138 S. Ct. 1204 (2018) ............................................................................ 9
Stinson v. United States,
508 U.S. 36 (1993) .............................................................................................. 14, 15
United States v. Batchelder,
442 U.S. 114 (1979) .................................................................................................. 20
United States v. Blackstone,
903 F.3d 1020 (9th Cir. 2018) .................................................................................. 24
United States v. Booker,
543 U.S. 220 (2005) .......................................................................................... passim
United States v. Greer,
881 F.3d 1241 (10th Cir. 2018) ................................................................................ 24
Welch v. United States,
578 U.S. __, 136 S. Ct. 1257 (2016) .................................................................. passim
STATUTES
18 U.S. § 16(b) ................................................................................................................ 9
vi
18 U.S.C. § 3553(a) ...................................................................................................... 13
18 U.S.C. § 3553(b) ...................................................................................................... 15
18 U.S.C. § 3553(e)....................................................................................................... 15
18 U.S.C. § 3553(f) ....................................................................................................... 15
18 U.S.C. § 924(e)(2)(B)(ii)......................................................................................... 1, 2
28 U.S.C. § 1254(1) ........................................................................................................ 1
28 U.S.C. § 2244(b)(3)(E) ......................................................................................... 5, 27
28 U.S.C. § 2255 ................................................................................................... passim
28 U.S.C. § 2255(h) .................................................................................................. 4, 27
28 U.S.C. § 994(h) .................................................................................................... 3, 16
SENTENCING GUIDELINES
U.S.S.G. § 4B1.1 cmt. backg’d (2015) ............................................................................ 3
U.S.S.G. § 4B1.1(b) ........................................................................................................ 3
U.S.S.G. § 4B1.2(a)(2) .......................................................................................... passim
U.S.S.G. app. C, amend. 798 (Aug. 1, 2016) ................................................................. 4
OTHER AUTHORITIES
Beckles, 137 S. Ct. 886,
Amicus Br. of Fed. Pub. & Cmty. Def. & NAFD
(U.S. No. 15-8544) (Aug. 18, 2016)........................................................................... 24
Raybon v. United States, 867 F.3d 625,
Amicus Br. of Sixth Circuit Fed. & Cmty. Def.
(6th Cir. No. 16-2522) (Oct. 18, 2017) ...................................................................... 24
vii
PETITION FOR A WRIT OF CERTIORARI
Petitioner respectfully seeks a writ of certiorari to review a decision of the
U.S. Court of Appeals for the Eleventh Circuit.
OPINIONS BELOW
The Eleventh Circuit’s opinion is reported at 2018 WL 5096322 (11th Cir.
2018) and reproduced as Appendix A.
App. 1a.
The Eleventh Circuit’s order
granting Petitioner a certificate of appealability is unreported but reproduced as
Appendix B. App. 6a. The district court’s order denying Petitioner’s 28 U.S.C.
§ 2255 motion is unreported but reproduced as Appendix C. App. 13a.
JURISDICTION
The Eleventh Circuit issued its decision on October 18, 2018. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
LEGAL PROVISIONS INVOLVED
The Armed Career Criminal Act defines a “violent felony” to include any
felony “that is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii). The italicized language is the “residual clause.”
At the time of Petitioner’s sentencing, the Career Offender provision of the
Sentencing Guidelines contained an identical residual clause, defining a “crime of
violence” to include any felony “that is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (2003).
1
STATEMENT OF THE CASE
A. LEGAL BACKGROUND
1.
The Armed Career Criminal Act (“ACCA”) transforms a ten-year
statutory maximum penalty into a fifteen-year mandatory minimum for certain
defendants convicted of federal firearms offenses. 18 U.S.C. §§ 924(a)(2), 924(e).
The ACCA enhancement applies when the defendant has a total of three “violent
felonies” or “serious drug offenses.” 18 U.S.C. § 924(e). For purposes of the ACCA,
“violent felony” is defined as, inter alia, any felony “that is burglary, arson, or
extortion, involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii)
(emphasis added). The italicized language is known as the “residual clause.”
In Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), the Court
held that the ACCA’s residual clause was unconstitutionally vague.
The Court
explained:
make
“Two
features
unconstitutionally vague.”
of
the
residual
Id. at 2557.
clause
conspire
to
it
First, the “ordinary-case” analysis—
requiring courts to “picture the kind of conduct that the crime involves in the
ordinary case, and to judge whether that abstraction presents a serious risk of
physical injury”—created “grave uncertainty about how to estimate the risk posed
by a crime.”
Id. (citation omitted).
And, second, the residual clause created
“uncertainty about how much risk it takes for a crime to qualify as a violent felony,”
because it “forces courts to interpret ‘serious potential risk’ in light of the four
enumerated crime” preceding it, and those crimes were “far from clear in respect to
2
the degree of risk each poses.” Id. at 2558 (citation omitted). Those uncertainties
led the Court to conclude that “the indeterminacy of the wide-ranging inquiry
required by the residual clause both denies fair notice to defendants and invites
arbitrary
enforcement
by
judges,”
“produc[ing]
more
unpredictability
and
arbitrariness than the Due Process Clause tolerates.” Id. at 2557–58.
In Welch v. United States, 578 U.S. __, 136 S. Ct. 1257 (2016), the Court held
that Johnson announced a new, substantive rule of constitutional law, and it
therefore had retroactive effect to cases on collateral review. The Court reaffirmed
that “a rule is substantive rather than procedural if it alters the range of conduct or
the class of persons that the law punishes,” and that determination is made “by
considering the function of the rule.” Id. at 1264–65 (citation omitted). The Court
concluded that, “[u]nder th[at] framework, the rule announced in Johnson is
substantive,” because it “changed the substantive reach” of the ACCA by “altering
the range of conduct or the class of persons that the Act punishes.” Id. at 1265.
2.
The
Career
Offender
provision
of
the
Sentencing
Guidelines
implements a congressional mandate to assure that a certain category of offenders
receive a sentence “at or near the maximum term authorized.” 28 U.S.C. § 994(h);
see U.S.S.G. § 4B1.1 cmt. backg’d (2015). The career offender provision creates a
“category of offender subject to particularly severe punishment.” Buford v. United
States, 532 U.S. 59, 60 (2001). It does so by generally prescribing enhanced offense
levels and automatically placing career offenders in criminal history category VI,
the highest category available under the Guidelines. See U.S.S.G. § 4B1.1(b).
3
A defendant is a career offender if he is at least eighteen years of age,
commits an offense that is a “crime of violence” or controlled substance offense, and
has at least two prior felony convictions for a “crime of violence” or controlled
substance offense. U.S.S.G. § 4B1.1. At the time of Petitioner’s sentencing in 2003,
the term “crime of violence” was defined to include any felony “that is burglary of a
dwelling, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(2) (2003) (emphasis added).1
The italicized language in the Career
Offender Guideline was perfectly identical to the ACCA residual clause that
Johnson invalidated.
As a result, thousands of federal prisoners who had been sentenced as career
offenders sought to collaterally challenge their sentences under 28 U.S.C. § 2255 in
light of Johnson. Some of those prisoners had been sentenced before this Court’s
decision in United States v. Booker, 543 U.S. 220 (2005) rendered the Guidelines
advisory. Because those prisoners had been sentenced over a decade earlier, many
had already filed an initial § 2255 motion in the past. Thus, they were legally
required to obtain authorization from the court of appeals before filing a second or
successive § 2255 motion based on Johnson. 28 U.S.C. § 2255(h).
Marvin Griffin was one such inmate, and he filed a pro se application for
leave to file a successive § 2255 motion based on Johnson. See 11th Cir. No. 16-
Shortly after Johnson, the Sentencing Commission amended § 4B1.2 and deleted
its residual clause. U.S.S.G., app. C, amend. 798 (Aug. 1, 2016). All references here
are to the pre-amendment version of § 4B1.2(a)(2).
1
4
12012. Without appointing counsel or holding oral argument, the Eleventh Circuit
issued a published opinion denying the application. In re Griffin, 823 F.3d 1350
(11th Cir. 2016). In doing so, the Court made two holdings. First, it held that “the
Guidelines—whether mandatory or advisory—cannot be unconstitutionally vague.”
Id. at 1354. Second, and alternatively, the court held that any ruling invalidating
§ 4B1.2(a)(2)’s then-mandatory residual clause would not be retroactive.
at 1355.
Id.
Because In re Griffin arose in the context of a successive application,
Mr. Griffin was statutorily barred from seeking rehearing or certiorari review. 28
U.S.C. § 2244(b)(3)(E).2
3.
After In re Griffin, this Court granted certiorari in Beckles v. United
States, 580 U.S. __, 137 S. Ct. 886 (2017) to decide, inter alia, whether Johnson
rendered § 4B1.2(a)(2)’s residual clause void for vagueness, and, if so, whether that
holding would have retroactive effect in cases on collateral review.
The Court
ultimately did not reach the retroactivity question because it held that the advisory
Guidelines were not subject to the constitutional prohibition on vagueness at all,
and therefore the residual clause in § 4B1.2(a)(2) could not be unconstitutionally
vague.
Mr. Griffin nonetheless re-filed two subsequent Johnson applications with the
court of appeals—one with counseled briefing, urging reconsideration of In re
Griffin; and one after this Court’s decision Beckles. See 11th Cir. Nos. 16-13752 &
17-11663. In the interim period, however, the court of appeals held that inmates
were legally barred from re-filing a Johnson-based application after a previous
application had been denied on the merits. In re Baptiste, 828 F.3d 1337 (11th Cir.
2016). Accordingly, Mr. Griffin’s subsequent applications were denied on that basis.
2
5
Critically, however, the Court’s holding was expressly limited to the advisory
Guidelines.
Id. at 890, 895–96.
Moreover, throughout the opinion, the Court
contrasted the post-Booker advisory Guidelines subject to its holding from the preBooker mandatory Guidelines. As a result, Justice Sotomayor’s separate opinion
made explicit what was implicit in the majority opinion—namely, that it did not
address defendants sentenced under the pre-Booker mandatory Guidelines:
The Court’s adherence to the formalistic distinction between
mandatory and advisory rules at least leaves open the question
whether defendants sentenced to terms of imprisonment before our
decision in United States v. Booker, 543 U.S. 220 (2005)—that is,
during the period in which the Guidelines did “fix the permissible
range of sentences,” ante, at 892—may mount vagueness attacks on
their sentences. That question is not presented by this case and I, like
the majority, take no position on its appropriate resolution.
Id. at 903 n.4 (Sotomayor, J., concurring in the judgment) (internal citations
omitted). This case squarely presents that question left open in Beckles.
B. PROCEDURAL BACKGROUND
Petitioner was sentenced as a career offender in 2003. Within one year of
Johnson, he filed an initial § 2255 motion to correct his pre-Booker career-offender
sentence in light of Johnson.
He argued that, given the invalidation of the
Guidelines’ residual clause, he was no longer a career offender and should be resentenced without the enhancement. His § 2255 motion was held pending Beckles.
After
Beckles
was
decided,
a
Magistrate
Judge
issued
a
Report,
recommending that the § 2255 motion be denied or, alternatively, dismissed as
untimely. He reasoned that Beckles held that Johnson did not apply to the advisory
Guidelines, and In re Griffin held that it did not apply to the mandatory Guidelines.
6
Dist. Ct. Dkt. Entry 12 at 4–11. Over Petitioner’s strong objections, Dist, Ct. Dkt.
Entry 16, the district court adopted the Magistrate Judge’s Report, App. 13a–16a.
The court found itself “bound by [In re] Griffin” notwithstanding Petitioner’s
arguments to the contrary. App. 14a–15a. Accordingly, the district court denied
the § 2255 motion. App. 15a. The Eleventh Circuit, however, granted Petitioner a
certificate of appealability, finding that reasonable jurists could debate whether
Johnson invalidated the mandatory residual clause and whether In re Griffin
constituted binding circuit precedent. App. 9a–12a.
On appeal, Petitioner reiterated his arguments.
Among other things, he
argued that, although Beckles’ holding addressed only the advisory Guidelines, its
reasoning compelled the conclusion that the mandatory Guidelines were subject to
the void-for-vagueness doctrine. Pet. Initial C.A. Br. 15–24. He further argued
that, while In re Griffin reached a contrary holding, that decision “does not
constitute binding precedent here because it was decided in the unique SOS [second
or successive] context,” and that “truncated decision-making process . . . is not
amenable to precedential decisions.” Id. at 24–28. He also argued that In re Griffin
was not binding precedent because the subsequent reasoning in Beckles had
undermined it to the point of abrogation, as there was “simply no way to reconcile”
the two decisions. Id. at 28–38. And he emphasized that, without the residual
clause, there was no dispute that he would not be a career offender—a point that
the government did not dispute in response. Id. at 38–39; see Gov’t C.A. Br.; Pet.
C.A. Reply Br. 1.
7
The court of appeals affirmed, relying exclusively on In re Griffin. App. 2a,
4a–5a. The court rejected Petitioner’s argument that In re Griffin was not binding
precedent because it was decided in the SOS context. App. 4a–5a. It therefore
bound the panel under the prior panel precedent rule, even if the panel believed
that it was wrongly decided. App. 5a. The court also rejected Petitioner’s argument
that Beckles’ reasoning abrogated In re Griffin, explaining that Beckles addressed
only the advisory Guidelines and thus was not “directly on point.” Id. Accordingly,
the court of appeals concluded that it “remain[ed] bound by [In re] Griffin.” Id. It
did not affirm the denial of Petitioner’s § 2255 motion on any alternative ground.
REASONS FOR GRANTING THE PETITION
I.
THE CIRCUITS ARE DIVIDED ON THE QUESTIONS PRESENTED
The circuits are divided on whether Johnson invalidates the mandatory, pre-
Booker residual clause of the Guidelines, and, if so, whether that invalidation would
have retroactive effect on collateral review. The Seventh Circuit has answered both
questions affirmatively. The Eleventh Circuit has answered both negatively.
A. The Seventh Circuit Has Declared the Guidelines’ Mandatory
Residual Clause Retroactively Void for Vagueness
1.
In Cross v. United States, 892 F.3d 288 (7th Cir. 2018), a unanimous
panel of the Seventh Circuit held that “the residual clause of the [mandatory]
guidelines suffers from the same indeterminacy” as the ACCA’s residual clause
struck down in Johnson. Id. at 299. The court explained that the “ordinary case”
approach and “serious potential risk” standard that had plagued the ACCA’s
residual clause applied equally to the Guidelines’ residual clause. Id. at 299–300.
8
“It hardly could be otherwise because the two clauses are materially identical.” Id.
That the Guidelines referred to burglary “of a dwelling,” while the ACCA referred
only to “burglary,” made no difference, particularly in light of Sessions v. Dimaya,
584 U.S. __, 138 S. Ct. 1204 (2018)—declaring 18 U.S.C. § 16(b) void for vagueness
in light of Johnson—because “the textual differences between the ACCA and
guidelines pale in comparison to the differences between the ACCA and section 16.”
Id. at 302. And concerns about the categorical approach in Dimaya were expressed
only by a minority of the Court and were limited only to § 16(b). Id. at 302–03.
Because the residual clause in the Guidelines suffered from the same
indeterminacy as the residual clause in the ACCA, the Court proceeded to
determine whether “the constitutional requirement of clarity applies to the
mandatory guidelines.” Id. at 299. The court concluded that Beckles’ “logic for
declining to apply the vagueness doctrine” to the advisory Guidelines resulted in the
opposite outcome for the mandatory Guidelines. Id. at 304.
It reasoned that,
unlike the advisory Guidelines, “[t]he mandatory guidelines did . . . implicate the
concerns of the vagueness doctrine” because, as described by Booker, they fixed the
permissible sentences for criminal offenses.
Id. at 305–06.
“In sum, as the
Supreme Court understood in Booker, the residual clause of the mandatory
guidelines did not merely guide judges’ discretion; rather, it mandated a specific
sentencing range and permitted deviation only on narrow, statutorily fixed bases.”
Id. at 306. Thus, the court of appeals “conclude[d] that the mandatory guidelines’
incorporation of the vague residual clause impeded a person’s efforts to ‘regulate his
9
conduct so as to avoid particular penalties’ and left it to the judge to ‘prescribe the
sentencing range available.’” Id. (quoting Beckles, 137 S. Ct. at 894–95 (ellipsis
omitted)).
“The mandatory guidelines are thus subject to attack on vagueness
grounds.” Id.
2.
The Seventh Circuit then proceeded to address “whether Johnson
applies retroactively to the residual clause of the career-offender guideline.” Id.
Relying heavily on this Court’s decision in Welch, the court of appeals answered
that question affirmatively.
Id.
It reasoned: “The same logic justifies treating
Johnson as substantive, and therefore retroactive, when applied to the mandatory
guidelines.” Id. “Just as excising the residual clause from the ACCA changed the
punishment associated with illegally carrying a firearm, striking down the residual
clause in the mandatory guidelines changes the sentencing range associated with
Cross’s and Davis’s bank robberies. At the same time, it narrows the set of
defendants punishable as career offenders for the commission of any number of
crimes.”
Id.
“Elimination of the residual clause of section 4B1.2(a)(2) (in its
mandatory guise) thus alters the range of conduct or the class of persons that the
law punishes and qualifies as a retroactive, substantive rule.”
Id. (citations
omitted).
Having declared the mandatory residual clause retroactively void for
vagueness, the court “h[e]ld that [movants] are entitled to relief from their careeroffender classifications, based on the Supreme Court’s decision in Johnson. We thus
10
REVERSE the district court and REMAND these cases with instructions to grant
[the] section 2255 motions and to resentence them” without the enhancement. Id.
B. The Eleventh Circuit Has Held That the Guidelines’ Mandatory
Residual Clause Is Not Void for Vagueness and That Any Such
Ruling Would Not Have Retroactive Effect
Binding Eleventh Circuit precedent categorically precludes such relief.
1.
In a pre-Beckles decision issued on a pro se application to file a
successive § 2255 motion, the Eleventh Circuit held that “the Guidelines—whether
mandatory or advisory—cannot be unconstitutionally vague because they do not
establish the illegality of any conduct and are designed to assist and limit the
discretion of the sentencing judge.” In re Griffin, 823 F.3d 1350, 1354 (11th Cir.
2016). It reasoned that “[t]he Guidelines do not define illegal conduct: they are
directives to judges for their guidance in sentencing convicted criminals, not to
citizens at large.” Id. And, the court emphasized, “[d]ue process does not mandate
notice of where, within the statutory range, the guidelines sentence will fall.” Id.
“Indeed, a defendant’s due process rights are unimpaired by the complete absence of
sentencing guidelines.” Id. at 1355. Thus, the court opined, “[t]he limitations the
Guidelines place on a judge’s discretion cannot violate a defendant’s right to due
process by reason of being vague.” Id. at 1354. And, it further noted, the PSI
afforded adequate notice of the career-offender enhancement. Id. at 1355.
2.
The court of appeals alternatively held that, even if the mandatory
residual clause was void for vagueness, “that does not mean that the ruling in
Welch makes Johnson retroactive.” Id. The court reasoned that “[t]he application
11
of Johnson to the ACCA was a substantive change in the law because it altered the
statutory range of permissible sentences.”
Id.
“By contrast, a rule extending
Johnson and concluding that it invalidates the crime-of-violence residual clause in
the Guidelines would establish only that the defendant’s guidelines range had been
incorrectly calculated, but it would not alter the statutory boundaries for sentencing
set by Congress for the crime.” Id. Because that invalidation would not “produce a
sentence that exceeds the statutory maximum,” and instead would “produce
changes in how the sentencing procedural process is to be conducted,” the court
characterized it as a procedural rather than a substantive rule. Id. And, unlike in
the ACCA context, the retroactive invalidation of the mandatory residual clause of
the Guidelines would not preclude the district court from re-imposing the same
sentence under the now-advisory Guidelines. Id. The court concluded: “A rule that
the Guidelines must satisfy due process vagueness standards therefore differs
fundamentally and qualitatively from a holding that a particular criminal statute or
the ACCA sentencing statute—that increases the statutory maximum penalty for
the underlying new crime—is substantively vague.” Id. at 1356.
In sum, geography alone will now determine whether career offenders
sentenced before Booker will be eligible for relief. Those from Chicago may walk
free; those from Miami will not. Only this Court can resolve that disparity.
II.
THE ELEVENTH CIRCUIT’S DECISION IN IN RE GRIFFIN CONTRAVENES
THIS COURT’S PRECEDENTS
In this case, the court of appeals relied exclusively on its pre-Beckles decision
in In re Griffin. App. 2a, 4a–5a. That decision’s pair of holdings—i.e., that the
12
mandatory Guidelines cannot be unconstitutionally vague, and that the invalidation
of § 4B1.2(a)(2)’s mandatory residual clause would not have retroactive effect—
contravene this Court’s precedents in Beckles and Welch, respectively.
A. In re Griffin’s Vagueness Holding Contravenes Beckles
1.
In Beckles, this Court explained, to determine whether a legal
provision is subject to the constitutional prohibition on vague laws, the key
“inquiry” is “whether a law regulating private conduct by fixing permissible
sentences provides notices and avoids arbitrary enforcement by clearly specifying
the range of penalties available.” 137 S. Ct. at 895. The Court concluded that the
advisory Guidelines do not fit that description, because they do not “fix the
permissible range of sentences,” but instead merely guide the exercise of sentencing
discretion under 18 U.S.C. § 3553(a). Id. at 892, 894.
Due to their advisory nature, the Court concluded that they do “not implicate
the twin concerns underlying vagueness doctrine—providing notice and preventing
arbitrary enforcement.”
Id. at 894.
It reasoned that “even perfectly clear
Guidelines could not provide notice to a person who seeks to regulate his conduct so
as to avoid particular penalties within the statutory range,” since the sentencing
court retained discretion to vary outside the advisory guideline range. Id. And
vague advisory Guidelines do not implicate the concern of arbitrary judicial
enforcement because, rather than “prescribe the sentences or sentencing range
available,” they merely “advise sentencing courts how to exercise their discretion
within the bounds established by Congress.” Id. at 894–95.
13
2.
Beckles’ reasoning compels the exact opposite outcome for the
pre-Booker mandatory Guidelines. While the advisory Guidelines do not “fix the
permissible range of sentences,” id. at 892, the mandatory Guidelines did precisely
that, id. at 903 n.4 (Sotomayor, J., concurring in the judgment). Indeed, Beckles
itself distinguished the mandatory Guidelines from the advisory Guidelines,
recognizing that the former were “binding on district courts” and “constrain[ed]
[their] discretion.” Id. at 894. The landmark decision in Booker made that clear.
In Booker, the Court was forced to confront (rather than avoid) the Sixth
Amendment challenge to the Guidelines precisely because they could not “be read
as merely advisory provisions that recommended, rather than required, the
selection of particular sentences.” 543 U.S. at 233. It explained:
The Guidelines as written . . . are not advisory; they are mandatory
and binding on all judges. While subsection (a) of § 3553 of the
sentencing statute lists the Sentencing Guidelines as one factor to be
considered in imposing a sentence, subsection (b) directs that the court
“shall impose a sentence of the kind, and within the range” established
by the Guidelines, subject to departures in specific, limited cases.
(Emphasis added.) Because they are binding on judges, we have
consistently held that the Guidelines have the force and effect of laws.
Id. at 233–34 (footnotes and parallel citations omitted); see Mistretta v. United
States, 488 U.S. 361, 391 (1989) (“the Guidelines bind judges and courts in the
exercise of their uncontested responsibility to pass sentence in criminal cases”);
Stinson v. United States, 508 U.S. 36, 42 (1993) (reiterating that Guidelines are
“binding on federal courts”). As a result, the Court in Booker repeatedly recognized
that the Guidelines effectively prescribed the range of permissible sentences. See
543 U.S. at 226 (“binding rules in the Guidelines limited the severity of the sentence
14
that the judge could lawfully impose on the defendant”); id. at 227 (Guidelines
“mandated that the judge select a sentence” in the range); id. at 236 (guideline
range established “the maximum sentence” and “upper limits of sentencing”). Thus,
it equated the guideline maximum with the statutory maximum. Id. at 238.
Booker further explained that the mandatory Guidelines had the “force and
effect of laws” despite “[t]he availability of a departure in specified circumstances.”
Id. at 234.
Departures were determined by considering “only the sentencing
guidelines, policy statements, and official commentary of the Sentencing
Commission,” 18 U.S.C. § 3553(b) (emphasis added); see Burns v. United States, 501
U.S. 129, 133 (1991), which were themselves “binding,” Stinson, 508 U.S. at 42–43.
Courts were not permitted “to decide for themselves, by reference to the” goals of
§ 3553(a), “whether a given factor ever [could] be an appropriate sentencing
consideration.”
Koon v. United States, 518 U.S. 81, 108 (1996).
Thus, “the
guidelines were no different from statutes, which often specify exceptions.”
Hawkins v. United States, 706 F.3d 820, 822 (7th Cir. 2013); see, e.g., 18 U.S.C.
§ 3553(e) (substantial-assistance exception to statutory minimum); 18 U.S.C.
§ 3553(f) (safety-valve exception to statutory minimum).
Indeed, Booker expressly rejected the notion that “the ability of a district
judge to depart from the Guidelines means that she is bound only by the statutory”
range. 543 U.S. at 234. The Court emphasized that “departures are not available
in every case, and in fact are unavailable in most,” where, “as a matter of law, the
Commission will have adequately taken all relevant factors into account, and no
15
departure will be legally permissible. In those instances, the judge is bound to
impose a sentence within the Guideline range.” Id. Departing from that mandatory
guideline range was reversible error. Id. at 234–35. And nowhere was that true
more than in the career-offender context, where Congress uniquely directed the
Commission to promulgate that particular Guideline. 28 U.S.C. § 994(h).
Because the mandatory Guidelines prescribed the permissible range of
sentences, any lack of clarity therein would squarely implicate the twin concerns of
the vagueness doctrine. While “even perfectly clear [advisory] Guidelines could not
provide notice to a person who seeks to regulate his conduct so as to avoid
particular penalties,” Beckles, 137 S. Ct. at 894, the same was not true for the
mandatory Guidelines. Because the mandatory Guidelines constrained the court’s
sentencing discretion, they provided concrete notice to a defendant of the particular
penalties available. Indeed, Beckles expressly reiterated that “due process concerns
. . . require[d] notice in a world of mandatory Guidelines.” Id. (quoting Irizarry v.
United States, 553 U.S. 708, 714 (2008)); see also Burns, 501 U.S. at 138.
Applying a vague Guideline in the pre-Booker era would also invite arbitrary
judicial enforcement. Because the mandatory Guidelines did not merely provide the
sentencing court with advice, but rather mandated a specific range of permissible
sentences, a vague Guideline would permit the court, “without any legally fixed
standards,” to arbitrarily “prescribe the sentences or sentencing range available.”
Beckles, 137 S. Ct. at 894–95 (citation omitted).
That is precisely the sort of
arbitrary judicial enforcement that motivated Johnson. In this case, for example,
16
the sentencing court had no intelligible standard by which to determine whether
Petitioner’s prior offenses constituted “crimes of violence” under the residual clause.
Rather
than
guide
the
sentencing
court’s
discretion,
that
determination established the fixed range of permissible sentences.
standardless
Permitting
judges to set that range without any intelligible legal standard directly implicates
the vagueness doctrine’s concern with arbitrary enforcement.
In short, the pre-Booker Guidelines were called “mandatory” for a reason:
they bound the sentencing judge.
Carrying the force and effect of law, they
prescribed the sentences that a court was permitted to impose and that a defendant
was eligible to receive. In stark contrast to the advisory Guidelines, they “fixed the
range of permissible sentences.” Beckles, 137 S. Ct. at 892. Thus, Beckles compels
the conclusion that the mandatory Guidelines under which Petitioner was
sentenced are subject to the constitutional prohibition on vagueness. And because
the mandatory residual clause in § 4B1.2(a)(2) is identical to the residual clause
invalidated in Johnson, it too must be declared void for vagueness.
3.
The contrary reasoning and conclusion of In re Griffin cannot be
reconciled with Beckles. For starters, at no time did it conduct the key “inquiry”
that Beckles now requires—i.e., whether the mandatory Guidelines fixed or
prescribed the range of permissible sentences. Id. at 892, 894–95. Instead, In re
Griffin adopted an incompatibly narrow understanding of the vagueness doctrine,
concluding that the mandatory Guidelines cannot be unconstitutionally vague
because “they do not establish the illegality of any conduct.” 823 F.3d at 1354; see
17
id. (repeating same). But Beckles reaffirmed what Johnson had already made clear:
the vagueness doctrine applies not only to “laws that define criminal offenses,” but
to “laws that fix the permissible sentences for criminal offenses.” Beckles, 137 S. Ct.
at 892 (emphasis omitted); see Johnson, 135 S. Ct. at 2557.
The court of appeals also failed to ask, as Beckles now requires, whether the
mandatory Guidelines “implicate[d] the twin concerns” of notice and arbitrary
enforcement underlying the vagueness doctrine. Beckles, 137 S. Ct. at 894. As for
the latter, In re Griffin said absolutely nothing at all, a glaring analytical omission.
As for the former, it reasoned that “[d]ue process does not mandate notice of where,
within the statutory range, the guidelines sentence will fall.” 823 F.3d at 1354.
That may be so, but Beckles made clear that due process does mandate notice of the
permissible “range” of sentences.
And while that does not include the range
established by advisory Guidelines (since they merely guide the exercise of
discretion), it does include the range established by mandatory Guidelines (since
they fixed the range of permissible sentences). By fixing the range of permissible
sentences, the mandatory Guidelines communicated the available sentences to a
defendant. See Beckles, 137 S. Ct. 894. Indeed, Beckles specifically contrasted the
mandatory Guidelines from the advisory Guidelines with regard to due process
notice principles. See id. (“the due process concerns that . . . require notice in a
world of mandatory Guidelines no longer apply’” post-Booker) (citations omitted)).
In re Griffin also reasoned that due process is satisfied whenever the PSI
notifies the defendant of the career-offender enhancement. 823 F.3d at 1355. But
18
Beckles made clear that the relevant notice question is not whether the defendant
receives notice of a potential sentence after having already committed the offense
and been convicted. Rather, it is whether the Guidelines supply notice ex ante to a
“person who seeks to regulate his conduct so as to avoid particular penalties.”
Beckles, 137 S. Ct. at 894.
In that regard, In re Griffin’s reasoning is also
irreconcilable with Johnson: in the ACCA context, probation officers routinely
notified defendants, after conviction but before sentencing, that they might receive
an enhanced sentence based on the residual clause. But that notice did not cure the
constitutional infirmity of the ACCA’s residual clause.
The remainder of In re Griffin’s analysis continues to overlook the key
distinction between advisory and mandatory Guidelines.
For example, in
concluding that the Guidelines, “whether mandatory or advisory,” cannot be
unconstitutionally vague, it reasoned that they were “designed to assist and limit
the discretion of the sentencing judge.” 823 F.3d at 1354 (emphasis added). That
conflates the key distinction—emphasized in Beckles—between advisory Guidelines
that “assist” (i.e., guide) sentencing discretion and mandatory Guidelines that
“limit” (i.e., constrain) such discretion. Beckles, 137 S. Ct. at 892, 894.
Continuing to treat the advisory and mandatory Guidelines as one and the
same, In re Griffin also reasoned that the Guidelines could not be vague because the
Constitution permitted completely indeterminate sentencing.
823 F.3d at 1355.
While Beckles did embrace that point, its reasoning applies only to the advisory
Guidelines.
Specifically, Beckles reasoned that, because a purely discretionary
19
sentencing regime was constitutional, there could be no vagueness problem with
Guidelines that sought only to guide that discretion. 137 S. Ct. at 892–94. At the
same time, however, Beckles made clear that the vagueness doctrine does apply to
laws prescribing the range of authorized penalties.
See id. at 892 (laws “must
specify the range of available sentences with sufficient clarity”) (citation omitted);
id. at 893 (reaffirming that sentencing laws must “specif[y] the ‘penalties available’
and define[ ] the ‘punishment authorized’”) (quoting United States v. Batchelder,
442 U.S. 114, 123 (1979)). Again, the mandatory Guidelines did just that.
In sum, at no time did In re Griffin acknowledge the binding nature of the
mandatory Guidelines, let alone ask whether they fixed the range of permissible
sentences, the key “inquiry” under Beckles. Instead, it focused on the fact that the
Guidelines did not define illegal conduct, which is not relevant under Beckles. It
repeatedly overlooked or conflated the key distinction between advisory and
mandatory Guidelines, a distinction that Beckles reaffirmed and emphasized. And
it did not properly analyze whether the mandatory Guidelines implicated the notice
and arbitrary enforcement concerns underlying the vagueness doctrine.
Had it
done so, it would have reached the same conclusion as the Seventh Circuit in Cross.
B. In re Griffin’s Retroactivity Holding Contravenes Welch
1.
In re Griffin’s retroactivity holding fares no better.
In Welch, this
Court explained: “By striking down the residual clause as void for vagueness,
Johnson changed the substantive reach of the Armed Career Criminal Act, altering
the range of conduct or the class of persons that the Act punishes.” 136 S. Ct.
20
at 1265 (citation omitted).
“Before Johnson, the Act applied to any person who
possessed a firearm after three violent felony convictions, even if one or more of
those convictions fell only under the residual clause.” Id. However, after Johnson,
the “same person engaged in the same conduct is no longer subject” to the
enhancement. Id. Thus, it announced a “substantive” rule with retroactive effect.
“By the same logic,” the Court added, “Johnson is not a procedural decision,”
because it “had nothing to do with the range of permissible methods a court might
use to determine whether a defendant should be sentenced under the Armed Career
Criminal Act.”
Id.
It did not, for example, “allocate decisionmaking authority
between judge and jury, or regulate the evidence that the court could consider in
making its decision.” Id. (citation omitted). Rather, “Johnson affected the reach of
the underlying statute rather than the judicial procedures by which the statute is
applied.” Id. Its function was therefore substantive, not procedural.
2.
Welch’s reasoning applies with full force here. Just as with Johnson,
any decision invalidating § 4B1.2(a)(2)’s mandatory residual clause would “change[ ]
the substantive reach of the [career offender Guideline], altering the range of
conduct or the class of persons that the [Guideline] punishes.”
Id. (internal
quotation marks omitted). Before that invalidation, the career offender Guideline
applied to any person who, inter alia, was convicted of a crime of violence after two
prior convictions for a crime of violence, “even if one or more of those convictions fell
under only the residual clause.” Id. But after the invalidation, “some crimes will no
longer fit the Sentencing Guidelines’ definition of a crime of violence and will
21
therefore be incapable of resulting in a career-offender sentencing enhancement.”
In re Hubbard, 825 F.3d 225, 234 (4th Cir. 2016). Thus, the very same person who
qualified as a career offender based on § 4B1.2(a)(2)’s mandatory residual clause
before its invalidation would no longer be subject to the enhancement after the
invalidation.
It therefore affects the substantive reach of the career offender
Guideline and, in turn, the class of persons eligible for its enhanced penalty.
3.
Ignoring Welch’s core reasoning, In re Griffin held that the invalidation
of § 4B1.2(a)(2)’s mandatory residual clause would be procedural rather than
substantive. Attempting to distinguish Welch, it reasoned that any such ruling
would not be substantive because it “would not alter the statutory boundaries for
sentencing,” and thus would not “produce a sentence that exceeds the statutory
maximum.” In re Griffin, 823 F.3d at 1355. Rather, it reasoned, that ruling would
be procedural because it “would establish only that the defendant’s guidelines range
had been incorrectly calculated,” which “would produce changes in how the
sentencing procedural process is to be conducted.” Id.
That attempt to distinguish Welch is wholly unpersuasive, because it neglects
that the mandatory Guidelines had “the force and effect of laws.” Booker, 543 U.S.
at 234. As explained at length above, under the pre-Booker regime, the sentencing
court was legally bound to sentence defendants in accordance with the Guidelines.
The Guidelines were thus the functional equivalent of what the statutory range is
today.
As a result, the career-offender enhancement, just like the ACCA
enhancement, subjected defendants to increased sentences that they could not
22
otherwise lawfully receive. Whether the sentence exceeded the correct statutory
maximum or the correctly-calculated high-end of the mandatory guideline range,
the result is the same: the defendant’s sentence was not “authorized by law.”
Welch, 136 S. Ct. at 1266.
Therefore, invalidating § 4B1.2(a)(2)’s mandatory
residual clause would not “produce changes in the sentencing procedural process”
any more than Johnson did. In re Griffin, 823 F.3d at 1355.
That conclusion is not affected by the limited availability of departures from
mandatory guideline range. Again, there are exceptions to the statutory range, yet
they did not render Johnson any less substantive. Moreover, this Court has already
determined, in a related context, that changing a “presumptive” guideline range—
one more liberally permitting departures based on any clear and convincing
reason—was substantive, not procedural, in nature. Miller v. Florida, 482 U.S. 423
(1987). Surely then, narrowing the reach of a mandatory guideline range, subject to
only limited departures in exceptional cases, must be substantive as well. Again,
had the Eleventh Circuit in In re Griffin properly applied Welch, it would have
reached the same conclusion as the Seventh Circuit in Cross. In short, there is no
sound basis to distinguish Welch’s retroactivity holding.
III.
THE QUESTIONS PRESENTED ARE OF GREAT PUBLIC IMPORTANCE
REQUIRING URGENT RESOLUTION BY THIS COURT
In light of the arguments above, many federal prisoners are currently serving
unlawful sentences. Accordingly to one recent estimate, there are approximately
five thousand federal prisoners who were sentenced as career offenders pre-Booker
and who remain in prison. See Raybon v. United States, 867 F.3d 625, Amicus Br.
23
of Sixth Circuit Fed. & Cmty. Def., App. 2a (6th Cir. No. 16-2522) (Oct. 18, 2017).
That high number reflects the severe operation of the enhancement.
See, e.g.,
Beckles, 137 S. Ct. 886, Am. Br. of Fed. Pub. & Cmty. Def. & NAFD 6, App. 2a (U.S.
No. 15-8544) (Aug. 18, 2016) (observing that, in on year, “[t]he average sentence
imposed on career offenders was 2.3 times that imposed on non-career offenders
convicted of the same offense types”) (emphasis omitted).
Moreover, it is estimated that over 1,100 of those 5,000 prisoners were
sentenced in the Eleventh Circuit. That is more than any other circuit. Indeed,
only the Fourth Circuit comes close to the thousand mark; no other circuit
surpasses 500 prisoners.
See Raybon, FPD Amicus Br. App. 3a–6a.
Yet, as
explained above, binding Eleventh Circuit precludes any of those prisoners from
obtaining relief under Johnson, Welch, and Beckles.
To be sure, some will
ultimately not be entitled to relief; some will have drug offenses as predicates, and
others will have crimes of violence that remain so even without the residual clause.
Nonetheless, some will have meritorious claims. Yet In re Griffin categorically bars
such claims from even being evaluated by a court.
The same dynamic is now also true in the Fourth, Sixth, Ninth, and Tenth
Circuits, which have dismissed similar mandatory Guidelines claims based on
Johnson as untimely. See United States v. Blackstone, 903 F.3d 1020 (9th Cir.
2018); United States v. Greer, 881 F.3d 1241 (10th Cir. 2018); Brown v. United
States, 868 F.3d 297 (4th Cir. 2017); Raybon v. United States, 867 F.3d 625 (6th Cir.
2017).
In those circuits, there are another estimated 1,600 pre-Booker career
24
offenders who remain in prison, and they too are unable to obtain relief. Adding
that figure to the 1,100 career offenders in the Eleventh Circuit means that, just in
those four circuits alone, there are approximately 2,700 federal prisoners who,
under this Court’s precedents, may be serving unlawful sentences.
This situation requires prompt resolution.
Indeed, because all of these
prisoners were sentenced before Booker, they have already been serving their
potentially-unlawful sentences for more than a dozen years. Confronted with a
similar dire situation, the federal courts—including this Court in Welch—have
moved expeditiously after Johnson in order to remedy illegal ACCA sentences. The
same haste is required here, lest this significant swath of illegal sentences go unremedied. Federal prisoners should not be required to serve an illegal sentence for
a single day, let alone years. Cf. Glover v. United States, 531 U.S. 198, 203 (2001)
(observing that even “a minimal amount of additional time in prison” is prejudicial).
Absent prompt intervention by this Court, however, numerous prisoners will be
forced to continue serving illegal sentences without recourse. This Court should not
permit these potential miscarriages of justice to persist.
See Brown v. United
States, 139 S. Ct. 14, 16 (2018) (Sotomayor, J., dissenting from denial of certiorari)
(recognizing that this issue “presents an important question of federal law that has
divided the courts of appeals and in theory could determine the liberty of over 1,000
people).
IV.
THIS CASE SQUARELY PRESENTS BOTH QUESTIONS FOR REVIEW
This case affords the Court an opportunity to intervene.
25
1.
The vagueness question presented here was extensively litigated
below. In the district court, Petitioner repeatedly pressed his contention that the
mandatory Guidelines were subject to the vagueness prohibition, and therefore
§ 4B1.2(a)(2)’s then-mandatory residual clause was unconstitutionally vague. The
government argued the opposite, relying on In re Griffin’s holding to the contrary.
And the district court agreed with the government, concluding that In re Griffin
foreclosed Petitioner’s § 2255 motion. App. 13a–15a.
Having received a COA on whether Johnson applies to the mandatory
Guidelines, App. 6a–12a, Petitioner reiterated his contentions on appeal, setting
forth his arguments in even greater detail. The government did the same. The
court of appeals squarely held that In re Griffin remained binding circuit precedent
even after Beckles, and therefore its holding—that the mandatory Guidelines could
not be unconstitutionally vague—foreclosed Petitioner’s § 2255 motion. App. 2a,
4a–5a. The court of appeals rested its decision solely on that basis. Accordingly,
the question expressly left open in Beckles is squarely presented for decision here.
2.
The retroactivity question is also presented for decision here. In In re
Griffin, the Eleventh Circuit held not only that the mandatory Guidelines were
immune from vagueness, but also that the invalidation of § 4B1.2(a)(2)’s mandatory
residual clause would not have retroactive effect in cases on collateral review. 823
F.3d at 1355–56. That decision considered, yet sought to distinguish, this Court’s
decision in Welch. And while the court of appeals did not need to expressly reiterate
that retroactivity holding here, it made clear that In re Griffin constitutes binding
26
circuit precedent.
App. 2a, 4a–5a.
Given In re Griffin’s precedential status,
remanding for resolution of the retroactivity question here would be futile. And
resolving that question is necessary not only to resolve this case, but to provide
critical guidance to the lower courts about whether a ruling invalidating the
mandatory residual clause would create a “new” rule of constitutional law distinct
from the substantive rule announced in Johnson; and, if so, whether that new rule
would also be entitled to retroactive effect, thereby triggering a new statute of
limitations under § 2255(f)(3), and satisfying the gatekeeping requirements for
successive motions in § 2255(h)(2).
3.
Finally, this case is one of a limited number of vehicles that will viably
present the mandatory Guidelines questions to the Court. All federal prisoners
subject to the mandatory Guidelines were sentenced over a decade ago. In the
interim, the vast majority of them have filed a § 2255 motion. That places them in
the successive posture, obligating them to obtain authorization from the court of
appeals before filing another one. 28 U.S.C. § 2255(h). The problem is that, while
there have been many decisions from the courts of appeals denying successive
applications in those cases, prisoners are statutorily barred from seeking certiorari
review of them. 28 U.S.C. § 2244(b)(3)(E). That is precisely why certiorari was
never sought in In re Griffin. And, of course, there are no longer any mandatory
Guidelines cases still on direct appeal. Thus, with the exception of an original
habeas petition, the only way for this Court to decide the mandatory Guidelines
question left open in Beckles is to do so by granting certiorari from the denial of an
27
initial § 2255 motion like this one. Again, that question is perfectly preserved and
squarely presented here.
The Court should decide it and the accompanying
retroactivity question along with it.
CONCLUSION
For the foregoing reasons, the Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
MICHAEL CARUSO
FEDERAL PUBLIC DEFENDER
/s/ Andrew L. Adler
Counsel of Record
ANDREW L. ADLER
ASS’T FED. PUBLIC DEFENDER
1 E. Broward Blvd., Suite 1100
Ft. Lauderdale, FL 33301
(954) 356-7436
Andrew_Adler@fd.org
Counsel for Petitioner
28
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.