Petition for Writ of Certiorari — Joshua R. Jones, Petitioner v. United States
Supreme Court briefMar 18, 2021
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No. 21-_______
__________________________________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
__________________________________________________________________________
JOSHUA R. JONES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
__________________________________________________________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit
__________________________________________________________________________
PETITION FOR WRIT OF CERTIORARI
__________________________________________________________________________
JENNIFER NILES COFFIN
Assistant Federal Defender
Federal Defender Services
of Eastern Tennessee, Inc.
800 South Gay Street, Suite 2400
Knoxville, Tennessee 37929
(865) 637-7979
QUESTIONS PRESENTED
In 2003, when the guidelines were mandatory, Joshua R. Jones was sentenced
as a career offender under U.S.S.G. § 4B1.1. His career offender designation depended
on the fact that he had a prior Tennessee conviction for attempted aggravated sexual
battery, which at the time qualified as a crime of violence under the residual clause
in § 4B1.2(a)(2). In 2015, this Court struck down as void for vagueness the identical
residual clause in the Armed Career Criminal Act’s definition of “violent felony” at 18
U.S.C. § 924(e)(2)(B)(ii). Johnson v. United States, 576 U.S. 591 (2015). Within a year,
Mr. Jones filed a § 2255 motion challenging his career offender designation in light
of the new rule announced in Johnson. But the district court dismissed the motion as
untimely under 28 U.S.C. § 2255(f)(3), viewing itself bound to do so by the Sixth
Circuit’s decision in Raybon v. United States, 867 F.3d 625 (6th Cir. 2017), in which
it held that the new rule announced in Johnson does not apply to the mandatory
guidelines unless and until this Court says so.
The questions presented are:
I.
Whether, for purposes of 28 U.S.C. § 2255(f)(3), the new rule announced
in Johnson applies to the identical residual clause in the mandatory
guidelines, U.S.S.G. § 4B1.2 (2003)?
II. Whether the residual clause
in the mandatory guidelines, U.S.S.G.
§ 4B1.2 (2003), is void for vagueness?
i
PARTIES TO THE PROCEEDINGS
All parties appear in the caption of the case on the cover page.
RELATED CASES
(1) United States v. Joshua R. Jones, No. 3:03-cr-18, District Court for the Eastern
District of Tennessee. Judgment entered September 9, 2003.
(2) Joshua R. Jones v. United States, Nos. 3:16-cv-253, 3:03-cr-18, District Court for
the Eastern District of Tennessee. Decision and order denying motion under 28
U.S.C. § 2255 entered January 14, 2019.
(3) Joshua R. Jones v. United States, No. 19-5229, U.S. Court of Appeals for the Sixth
Circuit. Decision and judgment affirming denial of § 2255 motion entered October 19,
2020.
(4) United States v. Joshua R. Jones, No. 3:03-cr-18, District Court for the Eastern
District of Tennessee. Order denying sentence reduction under section 404 of the
First Step Act of 2018 entered August 23, 2019.
(5) United States v. Joshua R. Jones, No. 19-6008, U.S. Court of Appeals for the Sixth
Circuit. Appeal of order denying sentence reduction under section 404 of the First
Step Act (pending).
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED .......................................................................................... ii
PARTIES TO THE PROCEEDINGS ........................................................................... iii
RELATED CASES ........................................................................................................ iii
TABLE OF AUTHORITIES .......................................................................................... v
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 2
STATEMENT OF THE CASE....................................................................................... 3
A. Legal background ............................................................................................. 4
B. Proceedings below ............................................................................................ 7
REASONS FOR GRANTING THE PETITION .......................................................... 11
I.
The circuits are split on the question whether, for purposes of 28 U.S.C.
§ 2255(f)(3), the new retroactive rule announced in Johnson applies to
the residual clause in the mandatory guidelines ............................................... 11
II.
The circuits holding that Johnson does not apply by its own force to
the mandatory guidelines’ residual clause are wrong. ....................................... 14
III. This case is an excellent vehicle for addressing this important question. ........ 30
IV. This Court should also resolve whether the mandatory guidelines’
residual clause is void for vagueness. ................................................................. 32
CONCLUSION............................................................................................................. 33
APPENDIX
Decision Affirming Denial of § 2255,
No. 19-5229 (6th Cir. Oct. 19, 2020) ............................................................... 1a-7a
Memorandum and Order Dismissing § 2255,
Nos. 3:16-cv-253, 3:03-cr-18 (E.D. Tenn. Jan. 14, 2019) ............................. 8a-15a
iv
TABLE OF AUTHORITIES
CASES
Beckles v. United States,
137 S. Ct. 886 (2017) .........................................................................................passim
Brown v. United States,
139 S. Ct. 14 (2018) ....................................................................................... 3, 17, 30
Buford v. United States,
532 U.S. 59 (2001) ..................................................................................................... 6
Butler v. McKellar,
494 U.S. 407 (1990) .................................................................................................. 18
Chaidez v. United States,
568 U.S. 342 (2013) ............................................................................... 18, 19, 24, 28
Chambers v. United States,
763 F. App’x 514 (6th Cir. 2019) ............................................................ 11-12, 13-14
Chickasaw Nation v. United States,
534 U.S. 84 (2001) ................................................................................................... 27
Daniels v. United States,
939 F.3d 898 (7th Cir. 2019) ................................................................................... 13
Dodd v. United States,
545 U.S. 353 (2005) ................................................................................................. 26
Duncan v. Walker,
533 U.S. 167 (2001) ........................................................................................... 23, 27
Godfrey v. Georgia,
446 U.S. 420 (1980) ................................................................................................. 15
Headbird v. United States,
813 F.3d 1092 (8th Cir. 2016) ................................................................................. 19
Hodges v. United States,
778 F. App’x 413 (9th Cir. 2019) ...................................................................... 12, 13
In re Griffin,
823 F.3d 1350 (11th Cir. 2016) ......................................................................... 11, 12
In re Sapp,
827 F.3d 1334 (11th Cir. 2016) ............................................................................... 12
In re Waters,
2018 U.S. App. LEXIS 30510 (6th Cir. Oct. 26, 2018) .......................................... 15
Johnson v. United States,
576 U.S. 591 (2015) ..........................................................................................passim
Lester v. United States,
921 F.3d 1306 (11th Cir. 2019) ................................................................... 12, 13, 17
Maynard v. Cartwright,
486 U.S. 356 (1988) ................................................................................................. 15
Mistretta v. United States,
488 U.S. 361 (1989) ............................................................................................. 6, 21
v
Moore v. United States,
871 F.3d 72 (1st Cir. 2018) ..................................................................................... 14
Mora-Higuera v. United States,
914 F.3d 1152 (8th Cir. 2019) ................................................................................. 13
Nunez v. United States,
954 F.3d 465 (2d Cir. 2020) .............................................................................. 11, 13
Raybon v. United States,
867 F.3d 625 (6th Cir. 2017) ...........................................................................passim
Russo v. United States,
902 F.3d 880 (8th Cir. 2018) .............................................................................. 11,17
Sessions v. Dimaya,
138 S. Ct. 1204 (2018) .....................................................................................passim
Sotelo v. United States,
922 F.3d 848 (7th Cir. 2019) ................................................................................... 13
Stinson v. United States,
508 U.S. 36 (1993) ............................................................................................... 6, 21
Stringer v. Black,
503 U.S. 222 (1992) ........................................................................................... 15, 25
Teague v. Lane,
489 U.S. 288 (1989) ............................................................................... 17, 18, 19, 24
United States v. Blackstone,
903 F.3d 1020 (9th Cir. 2018) ........................................................................... 11, 16
United States v. Booker,
543 U.S. 220 (2005) ....................................................................... 5, 8, 20, 21, 22, 24
United States v. Brown,
868 F.3d 297 (4th Cir. 2017) ............................................................. 3, 11, 12, 14, 28
United States v. Carter,
2019 WL 5580091 (D.D.C. Oct. 29, 2019) .............................................................. 12
United States v. Cross,
892 F.3d 288 (7th Cir. 2018) ................................................ 11, 22-24, 26, 27, 29, 32
United States v. Davis,
139 S. Ct. 2319 (2019) ......................................................................................... 4, 14
United States v. Green,
898 F.3d 315 (3d Cir. 2018) ........................................................................ 11, 14, 16
United States v. Greer,
881 F.3d 1241 (10th Cir. 2018) ............................................................................... 14
United States v. Hammond,
351 F. Supp. 3d 106 (D.D.C. 2018) ......................................................................... 12
United States v. LaBonte,
520 U.S. 751 (1997) ................................................................................................... 7
United States v. London,
937 F.3d 502 (5th Cir. 2019) ..................................................... 11, 12, 17, 19, 23, 28
United States v. Pullen,
913 F.3d 1270 (10th Cir. 2019) ......................................................................... 11, 17
vi
United States v. R.L.C.,
503 U.S. 291 (1992) ....................................................................................... 5, 21, 22
United States v. Rumph,
824 F. App’x 165 (4th Cir. 2020) ...................................................................... 13, 27
United States v. Shea,
976 F.3d 63 (1st Cir. 2020) ............................................ 11, 18, 19, 22, 24-25, 28, 32
United States v. Snyder,
871 F.3d 1122 (10th Cir. 2017) ............................................................................... 26
United States v. Wolfe,
767 F. App’x 390 (3d Cir. 2019) .............................................................................. 13
Welch v. United States,
136 S. Ct. 1257 (2016) ..................................................................................... 4, 9, 30
Wood v. Milyard,
566 U.S. 463 (2012) ................................................................................................. 29
Wright v. West,
505 U.S. 277 (1992) ................................................................................................. 25
Zuniga-Munoz v. United States,
No. 1:02-cr-124 (W.D. Tex. Apr. 26, 2018) ............................................................. 30
CONSTITUTIONAL PROVISIONS, STATUTES, AND GUIDELINES
U.S. Const. amend. V..................................................................................................... 2
U.S. Const. amend. VI .................................................................................. 2, 5, 20, 21
18 U.S.C. § 16(b) ............................................................................................... 4, 14, 26
18 U.S.C. § 922(g) .......................................................................................................... 7
18 U.S.C. § 924(c)(3)(B) ............................................................................... 4, 14, 15, 26
18 U.S.C. § 924(e)................................................................................................... 3, 6, 8
18 U.S.C. § 924(e)(2)(B)(ii)....................................................................................... 4, 32
18 U.S.C. § 3553(b) .................................................................................................. 5, 20
21 U.S.C. § 841(b)(1)(A) (2003) ...................................................................................... 7
21 U.S.C. § 841(b)(1)(B) ............................................................................................... 31
21 U.S.C. § 846 ............................................................................................................... 7
28 U.S.C. § 994(h) .......................................................................................................... 6
28 U.S.C. § 1254(1) ........................................................................................................ 2
28 U.S.C. § 2255 ....................................................................................................passim
28 U.S.C. § 2255 (1995) ............................................................................................... 19
28 U.S.C. § 2255(a) ........................................................................................................ 4
28 U.S.C. § 2255(f)(1) ..................................................................................................... 4
28 U.S.C. § 2255(f)(3) ............................................................................................passim
28 U.S.C. § 2255(h)(2) .................................................................................................. 15
First Step Act, Pub. L. No. 115-391, sec. 404(b) (2018).............................................. 31
U.S.S.G. § 2D1.1 .......................................................................................................... 31
U.S.S.G. § 4B1.1......................................................................................................... 6, 7
U.S.S.G. § 4B1.2 (1989) ................................................................................................. 7
vii
U.S.S.G. § 4B1.2(a) (2003) ....................................................................................passim
U.S.S.G. § 5G1.1(b) ...................................................................................................... 31
U.S.S.G. App. C, amend. 268 (1989) ............................................................................. 8
U.S.S.G. App. C, amend. 798 (Supp. 2016) ................................................................... 8
OTHER AUTHORITIES
ASSERT, Black’s Law Dictionary (11th ed. 2019) ..................................................... 26
HOLDING, Black’s Law Dictionary (11th ed. 2019) .................................................. 27
RIGHT, Black’s Law Dictionary (11th ed. 2019) ........................................................ 28
137 Cong. Rec. S8558-02, 1991 WL 111516 (June 25, 1991) ..................................... 19
Karl Llewellyn,
The Common Law Tradition (1960) ....................................................................... 27
United States Sentencing Commission,
Quick Facts – Crack Cocaine Trafficking Offenses (2020) .................................... 32
viii
No. 21-_______
__________________________________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
__________________________________________________________________________
JOSHUA R. JONES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
__________________________________________________________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit
__________________________________________________________________________
PETITION FOR WRIT OF CERTIORARI
__________________________________________________________________________
Joshua R. Jones respectfully petitions this Court for a writ of certiorari to
review the judgment of the United States Courts of Appeals for the Sixth Circuit.
OPINIONS BELOW
The unpublished decision of the United States Court of Appeals for the Sixth
Circuit appears at pages 1a to 7a of the appendix to this petition, and is reported at
832 F. App’x 929 (6th Cir. 2020). The district court’s unpublished decision denying
and dismissing Mr. Jones’s motion under 28 U.S.C. § 2255 appears along with the
accompanying order at pages 8a to 15a of the appendix to this petition.
1
JURISDICTION
This Court has jurisdiction under 28 U.S.C. § 1254(1). The court of appeals’
decision affirming the denial of Mr. Jones’s § 2255 motion was entered on October 19,
2020. Pet. App. 1a. This petition is timely filed pursuant to Supreme Court Rule 13.1,
as extended by order dated March 19, 2020.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fifth Amendment’s Due Process Clause provides:
No person shall . . . be deprived of life, liberty, or property, without due process
of law.
28 U.S.C. § 2255(f) provides:
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
U.S.S.G. § 4B1.2(a) (2003) provided:
(a)
The term “crime of violence” means any offense under federal or
state law, punishable by imprisonment for a term exceeding one
year, that –
(1)
has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
2
(2)
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.
STATEMENT OF THE CASE
Joshua R. Jones is serving a career offender sentence based on a prior
conviction that qualified as a crime of violence only under § 4B1.2(a)’s hopelessly
vague residual clause, which because the guidelines were mandatory fixed his
permissible sentencing range. This Court in Johnson v. United States, 576 U.S. 591
(2015), struck down as void for vagueness the identical residual clause in 18 U.S.C.
§ 924(e), then applied the rule in Johnson to strike down as void for vagueness two
similar residual clauses in two different statutes. Each was applied in the same
categorical way. Yet, the courts of appeals cannot agree on whether Johnson likewise
invalidates the mandatory guidelines’ residual clause, though it was identical to the
one struck down in Johnson and was applied in the same categorical way to fix
sentencing ranges. Because the lower courts have reached a deep and intractable
impasse, only this Court can resolve the matter.
This question is extremely important. Its resolution “could determine the
liberty of over 1,000 people.” Brown v. United States, 139 S. Ct. 14, 16 (2018)
(Sotomayor, J., dissenting from the denial of certiorari). With the residual clause
excised as unconstitutional, Mr. Jones’s § 2255 motion should be considered on the
merits, and he is entitled to § 2255 relief. If resentenced today, his sentence would
likely be reduced by nearly twelve years, to the 10-year statutory minimum, a term
he has already overserved by over seven years.
3
A.
Legal background
A federal prisoner may move to vacate his sentence under § 2255 if the
sentence violates the Constitution. See 28 U.S.C. § 2255(a). Any such motion
generally must be filed within one year of the date on which the judgment of
conviction becomes final. 28 U.S.C. § 2255(f)(1). However, a federal prisoner may later
file a § 2255 motion within one year from “the date on which the right asserted was
initially recognized by the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral review.”
28 U.S.C. § 2255(f)(3).
In 2015, this Court in Johnson struck down as void for vagueness the residual
clause in the Armed Career Criminal Act at 18 U.S.C. § 924(e)(2)(B)(ii), thereby
announcing a new, substantive rule retroactively applicable to cases on collateral
review. 576 U.S. at 597, 606; Welch v. United States, 136 S. Ct. 1257, 1265 (2016).
Then in Dimaya, this Court applied Johnson to strike down § 16(b)’s residual clause
as void for vagueness. 138 S. Ct. at 1214-15. And in Davis, the Court applied Johnson
to strike down the residual clause at § 924(c)(3)(B) as void for vagueness, once it
confirmed that the same categorical approach applied to it as to the others. United
States v. Davis, 139 S. Ct. 2319, 2336 (2019) (“We agree with the court of appeals’
conclusion that § 924(c)(3)(B) is unconstitutionally vague.”). By that time, even the
government “acknowledge[d] that, if [the categorical approach applies to
§ 924(c)(3)(B)], then § 924(c)(3)(B) must be held unconstitutional too.” Id. at 2326-27.
4
When Mr. Jones was sentenced in 2003, the guidelines were mandatory. When
the guidelines were mandatory, they “impose[d] binding requirements on all
sentencing judges.” United States v. Booker, 543 U.S. 220, 233 (2005). It was the
“binding” nature of the guidelines that created the constitutional problem in Booker:
“[i]f the Guidelines as currently written could be read as merely advisory provisions,”
“their use would not implicate the Sixth Amendment.” Id. And this “mandatory and
binding” nature of the guidelines came directly from Congress. Id. at 233-34; see 18
U.S.C. § 3553(b) (directing that courts “shall impose a sentence of the kind, and
within the range” established by the Guidelines). “Because they are binding on
judges, we have consistently held that the Guidelines have the force and effect of
laws.” 543 U.S. at 234.
Booker made clear that the availability of departures in no way rendered the
guidelines less than mandatory and binding laws. “In most cases, as a matter of law,
the Commission will have adequately taken all relevant factors into account, and no
departure will be legally permissible. In those instances, the judge is bound to impose
a sentence within the Guidelines range.” Id. (emphasis added). Indeed, Booker
acknowledged that had the district court departed from the mandatory guideline
range in Booker’s case, the judge “would have been reversed.” Id. at 234-35. And
Booker’s understanding that the mandatory guideline range fixed the statutory
penalty range was well-established. United States v. R.L.C., 503 U.S. 291, 297 (1992)
(“The answer to any suggestion that the statutory character of a specific penalty
provision gives it primacy over administrative sentencing guidelines is that the
5
mandate to apply the Guidelines is itself statutory.”); 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) (noting “the principle that the Guidelines Manual is
binding on federal courts”). No doubt in light of these features, the government at
oral argument in Beckles v. United States recognized that mandatory guidelines,
unlike advisory guidelines, “impose[d] an insuperable barrier that requires a specific
finding of fact before the judge can sentence outside the guidelines.” Tr. Oral Arg. at
41, Beckles v. United States, 137 S. Ct. 886 (2017) (No. 15-8544).
The mandatory career offender guideline was one such barrier, creating a
“category of offender subject to particularly severe punishment.” Buford v. United
States, 532 U.S. 59, 60 (2001). Congress mandated that the Sentencing Commission
“specify a sentence to a term of imprisonment at or near the maximum term
authorized” for “categories of defendants” convicted for at least the third time of a
“felony that is” a “crime of violence” or “an offense described in” particular federal
statutes prohibiting drug trafficking. See 28 U.S.C. § 994(h). The Commission
implemented the directive by tying the offense level to the statutory maximum for
the instant offense of conviction and automatically placing the defendant in Criminal
History Category VI if the defendant’s instant offense, and at least two prior
convictions, constitute a “crime of violence” or a “controlled substance offense.”
U.S.S.G. § 4B1.1(a)-(b). Beginning in 1989 and continuing through 2015, the
Commission used the definition of “violent felony” in § 924(e) to define “crime of
6
violence” as an offense punishable by a term of imprisonment exceeding one year that
“(1) has as an element the use, attempted use, or threatened use of physical force
against the person of another, or; (2) 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 (1989).
Because Congress mandated that the Commission specify a term of
imprisonment at or near the statutory maximum, the Commission’s one attempt to
ameliorate the severity of the guideline when it was mandatory was held invalid. See
United States v. LaBonte, 520 U.S. 751, 757 (1997). At the same time, courts applied
the guideline broadly under the vague language of the residual clause, imagining all
sorts of potential risk posed by the idealized “ordinary” case. See Johnson, 576 U.S.
at 597-98, 604. Many career offenders sentenced to harsh prison terms based on
minor offenses have been unable to obtain relief under guideline amendments or
other changes in law. Mr. Jones is one of them.
B. Proceedings below
1. In 2003, Mr. Jones pled guilty in the Eastern District of Tennessee to being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and to conspiracy
to possess with intent to distribute fifty grams or more of cocaine base (“crack”), in
violation of 21 U.S.C. §§ 846, 841(b)(1)(A). The Presentence Report (“PSR”)
determined that he qualified as a career offender under U.S.S.G. § 4B1.1 and 4B1.2
based on a finding that he had a prior Tennessee conviction for possession of cocaine
for resale and a prior Tennessee conviction for attempted aggravated sexual battery,
7
then deemed a “crime of violence” under the residual clause at U.S.S.G. § 4B1.2(a)(2),
(PSR ¶¶ 54, 56), which was based on, and incorporated much of its language from,
the definition of “violent felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(“ACCA”). See U.S.S.G. App. C, amend. 268 (1989). 1
2. The career offender designation dictated an enhanced guideline range of
262 to 327 months. (PSR ¶ 77.) Because the guideline range at that time was
mandatory, see United States v. Booker, 543 U.S. 220, 245 (2005), Mr. Jones was
sentenced on September 3, 2003 to serve 262 months in prison to be followed by ten
years’ supervised release. (Judgment, R. 38.) 2 Mr. Jones did not appeal.
3. On May 13, 2016, within one year of the Supreme Court’s decision in
Johnson v. United States, 576 U.S. 591 (2015), Mr. Jones filed a pro se § 2255 motion
in the district court asserting that his sentence was imposed in violation of the
Constitution because he was classified as a career offender based on the residual
clause in § 4B1.2. (Motion to Vacate Pursuant to 28 U.S.C. § 2255, R. 48.) A few weeks
later, appointed counsel filed a supplemental § 2255 motion in which Mr. Jones
repeated and elaborated on his claim for relief, (Supplemental § 2255 Motion, R. 51),
to which the government responded, (Response in Opposition, R. 52).
4. While his motion was pending, the Supreme Court decided Beckles v. United
States and held that Johnson does not invalidate the residual clause in the advisory
Effective August 1, 2016, the Sentencing Commission amended the crime-ofviolence definition to eliminate § 4B1.2(a)(2)’s residual clause. See U.S.S.G. App. C,
amend. 798 (Supp. 2016).
1
2 Mr. Jones’s projected release date is currently January 5, 2023.
8
career offender guideline. 137 S. Ct. 886, 892 (2017). In later filings, and as the
government suggested at oral argument in Beckles, Mr. Jones argued that Beckles
does not preclude his claim that the rule announced in Johnson invalidates the
residual clause under the sentence-fixing mandatory career offender guideline at
§ 4B1.2(a), and that the rule he asks to be applied is the rule announced in Johnson,
without need for any “extension” by the Supreme Court or any court. (See
Supplemental Brief, R. 59; Reply to Gov’t Response, R. 65.) He further maintained
that the rule is substantive and applies retroactively to his case, as held in Welch v.
United States, 136 S. Ct. 1257 (2016), and that his claim is timely filed. (Ibid.) Absent
the residual clause, he argued, he is not subject to the career offender guideline
because his prior Tennessee conviction for attempted aggravated sexual battery had
been previously counted only under the residual clause. (Supplemental Brief, R. 59.)
As a result, he is entitled to be resentenced.
5. The government opposed the motion. (Gov’t Response in Opposition to
Supplement, R. 62.) Its position was that applying the rule in Johnson to the
mandatory guidelines would require an “extension” of that rule, and further that the
right Mr. Jones asserts is a non-watershed procedural rule not made retroactively
applicable on collateral review. (See id.) The government did not dispute that Mr.
Jones’s conviction for attempted aggravated sexual battery does not qualify as a crime
of violence absent the residual clause.
6. Thereafter, in Raybon v. United States, 867 F.3d 625 (6th Cir. 2017), the
Sixth Circuit concluded that this Court had not yet held that the rule in Johnson
9
applies to the mandatory guidelines and that as a result, a Johnson-based § 2255
motion is not timely filed under § 2255(f)(3), but rather is filed too soon. Raybon v.
United States, 867 F.3d 625, 630 (6th Cir. 2017), cert. denied, 138 S. Ct. 2661 (2018)
(holding that Johnson did not create a “right newly recognized and made retroactively
applicable” to mandatory guidelines cases for purposes of 28 U.S.C. § 2255(f)(3)). It
reasoned that it is “an open question” whether Johnson applies to the mandatory
guidelines, and “[b]ecause it is an open question,” “it is not a ‘right’ that ‘has been
newly recognized by the Supreme Court’ let alone one that was ‘made retroactively
applicable to cases on collateral review.’” Id. (quoting 28 U.S.C. § 2255(f)(3)).
7. Relying on Raybon, the district court denied Mr. Jones’s motion as untimely,
and dismissed the case with prejudice. Pet. App. 8a-15a.
8. Mr. Jones thereafter sought a certificate of appealability on four questions:
(1) whether Raybon remains good law in light of Sessions v. Dimaya, 138 S. Ct. 1204
(2018) (applying Johnson to the materially same residual clause in 18 U.S.C. § 16 in
the immigration context); (2) whether his Johnson-based § 2255 motion is timely; (3)
whether Johnson invalidates the Guidelines’ residual clause; and (4) whether he is
entitled to relief on the merits. On January 15, 2020, the Sixth Circuit granted the
certificate of appealability.
9. On October 19, 2020, after full briefing, the Sixth Circuit affirmed the denial
of § 2255 relief. It held that even after both Dimaya and Davis applied the rule in
Johnson to non-ACCA residual clauses, it remained bound under Raybon to deny his
motion as untimely. Pet. App. 5a-7a.
10
Mr. Jones now seeks review of the extraordinarily important question whether
the residual clause at § 4B1.2 in the mandatory guidelines is void for vagueness, and
consequently whether he is entitled to relief from an unconstitutional mandatory
career offender sentence. This question has divided the courts below and warrants
the Court’s review.
REASONS FOR GRANTING THE PETITION
I.
The circuits are split on the question whether, for purposes of 28
U.S.C. § 2255(f)(3), the new retroactive rule announced in Johnson
applies to the residual clause in the mandatory guidelines.
The circuits are deeply divided. The First and Seventh Circuits have held that,
for purposes of the statute of limitations at 28 U.S.C. § 2255(f)(3), the new retroactive
rule announced in Johnson applies to the residual clause in the mandatory
guidelines. United States v. Shea, 976 F.3d 63, 71 (1st Cir. 2020); United States v.
Cross, 892 F.3d 288, 299-306 (7th Cir. 2018). In direct conflict, nine circuits (including
the Sixth Circuit) have held that Johnson’s new retroactive right does not apply to
the residual clause in the mandatory guidelines. Nunez v. United States, 954 F.3d
465, 471 (2d Cir. 2020); United States v. Green, 898 F.3d 315 (3d Cir. 2018); United
States v. Brown, 868 F.3d 297 (4th Cir. 2017), cert. denied, 139 S. Ct. 14 (2018); United
States v. London, 937 F.3d 502 (5th Cir. 2019); Raybon v. United States, 867 F.3d 625
(6th Cir. 2017); Russo v. United States, 902 F.3d 880 (8th Cir. 2018); United States v.
Blackstone, 903 F.3d 1020 (9th Cir. 2018); United States v. Pullen, 913 F.3d 1270,
1283-84 (10th Cir. 2019); In re Griffin, 823 F.3d 1350 (11th Cir. 2016).
Even within these nine circuits, judges sharply disagree. See, e.g., Chambers
11
v. United States, 763 F. App’x 514, 519 (6th Cir. 2019) (Moore, J., concurring), rh’g
denied, No. 18-3298 (6th Cir. June 26, 2019) (expressing view that Raybon “was
wrong on this issue”); Brown, 868 F.3d at 304-05, 310 (Gregory, C.J., dissenting), cert.
denied, 139 S. Ct. 14 (2018) (“Because Brown asserts th[e] same right [recognized in
Johnson], I would find his petition timely under § 2255(f)(3), even though his
challenge is to the residual clause under the mandatory Sentencing Guidelines,
rather than the ACCA.”); London, 937 F.3d at 510 (5th Cir.) (Costa, J., concurring in
judgment) (“We are on the wrong side of a split. . . . Our approach fails to apply the
plain language of the statue and undermines the prompt presentation of habeas
claims the statute promotes.”); Hodges v. United States, 778 F. App’x 413, 414-15 (9th
Cir. 2019) (Berzon, J., concurring) (“[I]n my view, Blackstone was wrongly decided.”);
Lester v. United States, 921 F.3d 1306, 1319 (11th Cir. 2019) (en banc) (Martin, J.,
joined by Rosenbaum and J. Pryor, JJ., statement respecting the denial of rehearing
en banc) ([T]he opinion in In re Griffin is mistaken.”); id. at 1328-33 (Rosenbaum, J.,
joined by Martin and J. Pryor, JJ.); see also In re Sapp, 827 F.3d 1334, 1336-41 (11th
Cir. 2016) (Jordan, Rosenbaum, Pryor, JJ.) (calling Griffin into question).
Only the D.C. Circuit has not decided the question. But some district courts
there have granted Johnson relief to individuals sentenced under the residual clause
in the mandatory guidelines. E.g., United States v. Carter, 2019 WL 5580091 (D.D.C.
Oct. 29, 2019); United States v. Hammond, 351 F. Supp. 3d 106 (D.D.C. 2018).
The deep disagreement between and within the circuits is unlikely to resolve
itself. The Sixth Circuit, though it granted a certificate of appealability in this case
12
after Davis and considered the question after full briefing, concluded that it remains
bound by Raybon. The Fourth Circuit also recently considered the question after full
briefing after Davis, concluded it remained bound by Brown, and denied rehearing en
banc. See United States v. Rumph, 824 F. App’x 165, 168-69 (4th Cir. 2020), reh’g
denied, 2020 U.S. App. LEXIS 38943 (4th Cir. Dec. 11, 2020). The Ninth and Eleventh
Circuits too have denied rehearing en banc. Order, Hodges v. United States, 778 F.
App’x 413 (9th Cir. Oct. 17, 2019) (No. 17-35408); Lester, 921 F.3d at 1307. The Third
and Eighth Circuits have likewise signaled they will not budge. United States v.
Wolfe, 767 F. App’x 390, 391 (3d Cir. 2019); Mora-Higuera v. United States, 914 F.3d
1152, 1154 (8th Cir. 2019).
Meanwhile, the Seventh Circuit declined the government’s suggestion to
reconsider Cross in Sotelo v. United States, 922 F.3d 848, 851 (7th Cir. 2019), and
reaffirmed in October 2019 its view that the mandatory guidelines’ residual clause is
void for vagueness under Johnson. See Daniels v. United States, 939 F.3d 898, 900
(7th Cir. 2019). The government did not seek this Court’s review of the First Circuit’s
decision in Shea.
This conflict will remain until this Court resolves it. Until then, the liberty of
incarcerated persons will continue to depend solely on the luck of geography. If Mr.
Jones’s sentence violates due process, his continued incarceration without the
opportunity to seek redress is a grave injustice. Nunez v. United States, 954 F.3d 465,
472 (2d Cir. 2020) (Pooler, J., concurring). As Judge Moore in Chambers urged,
[This] Court should resolve this matter. It is problematic that these
individuals are potentially sentenced in violation of the Constitution or
13
laws of the United States without clarification as to whether Johnson
applies to a sentencing provision that is worded identically to, and is
equally binding as, the ACCA’s unconstitutionally vague residual
clause.
Chambers, 763 F. App’x at 526-27 (Moore, J., concurring).
II.
The circuits holding that Johnson does not apply by its own force to
the mandatory guidelines’ residual clause are wrong.
1. The Sixth Circuit, like the Third, Fourth, and Tenth Circuits, holds that
Johnson does not apply beyond cases involving the exact statute at issue in Johnson.
Pet. App. 5a-7a. See Brown, 868 F.3d at 302; Greer, 881 F.3d at 1258; Green, 898
F.3d at 321-22. But Dimaya proves them wrong. It applied Johnson to strike down
as unconstitutionally vague a similar provision in a different statute, explaining that
“Johnson is a straightforward decision, with equally straightforward application
here,” and “tells us how to resolve this [§ 16(b)] case.” 138 S. Ct. at 1213, 1223.
Then
in
Davis,
this
Court
applied
Johnson
to
strike
down
as
unconstitutionally vague an identical provision in yet another statute, explaining
that Johnson and Dimaya “teach that the imposition of criminal punishment can’t
be made to depend on a judge’s estimation of the degree of risk posed by a crime’s
imagined ‘ordinary case.’” 139 S. Ct. 2319, 2326 (2019). After Dimaya, even the
government “acknowledge[d] that, if [the categorical approach applies to
§ 924(c)(3)(B)], then § 924(c)(3)(B) must be held unconstitutional too.” Id. at 232627; see also Moore v. United States, 871 F.3d 72, 82 (1st Cir. 2018) (noting that
government “appear[ed] to agree that the rule is broader than [Johnson’s] technical
holding”). Once this Court held that the categorical approach applies to
14
§ 924(c)(3)(B), the Court simply applied the rule in Johnson to invalidate it. Id. at
2336 (“We agree with the court of appeals’ conclusion that § 924(c)(3)(B) is
unconstitutionally vague.”).
Not only does these circuits’ exact-statute approach fail to survive Dimaya
and Davis, but it also conflicts with this Court’s void-for-vagueness habeas
precedent. In Godfrey v. Georgia, this Court held unconstitutional a vague Georgia
capital-sentencing statute. 446 U.S. 420, 433 (1980). In a later habeas case, Maynard
v. Cartwright, the Court held unconstitutional a vague Oklahoma capital-sentencing
statute. 486 U.S. 356, 363-64 (1988). The decision in Maynard was “controlled by
Godfrey,” even though Godfrey and Maynard involved different sentencing statutes.
Stringer v. Black, 503 U.S. 222, 228-29 (1992). And Godfrey also controlled in
Stringer even though that case involved a vague Mississippi capital-sentencing
scheme of a different character than the one in Godfrey. Id. at 229. This line of
precedent makes clear that an exact-statute approach is wrong. They show that this
case is “controlled by [Johnson],” even though Johnson involved a different law
fixing permissible sentences. 3
The Sixth Circuit also relied heavily on Beckles (as did the Ninth Circuit and
3 Although Raybon might be read as limited to the guidelines’ context, the
Sixth
Circuit after Dimaya applied Raybon before Davis as an exact-statute rule in the
context of the residual clause in § 924(c)(3)(B) and § 2255(h)(2). In re Waters, No. 185580, 2018 U.S. App. LEXIS 30510, at *4 (6th Cir. Oct. 26, 2018). It acknowledged
that Johnson and Dimaya may “require the invalidation” of that statute’s residual
clause, but said that this Court had not yet so held. But under the
Godfrey/Maynard/Stringer line of precedent, if Johnson “requires the invalidation”
of a criminal provision fixing the scope of criminal liability, as Davis has since held,
then Johnson is the rule.
15
the Third Circuit in addition to the exact-statute approach). Raybon, 867 F.3d at 63;
Blackstone, 903 F.3d at 1026; Green, 898 F.3d at 321-22. Beckles held that Johnson
does not provide relief for individuals sentenced under the advisory guidelines’
residual clause because the advisory guidelines “do not fix the permissible range of
sentences.” 137 S. Ct. at 892. But Beckles distinguished advisory guidelines from
mandatory guidelines, id. at 894, and cabined its decision: “We hold only that the
advisory Sentencing Guidelines, including § 4B1.2(a)’s residual clause, are not
subject to a challenge under the void-for-vagueness doctrine,” id. at 896. Beckles does
not hold that Johnson’s rule does not apply to the mandatory guidelines.
The Sixth and Ninth Circuits also relied on footnote 4 of Justice Sotomayor’s
concurrence in Beckles. Blackstone, 903 F.3d at 1026; Raybon, 867 F.3d at 629-30. In
that footnote, Justice Sotomayor, like the majority opinion, cabined the decision in
Beckles to the advisory 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 [Booker]—
that is, during the period in which the Guidelines did “fix the
permissible range of sentences”—may mount vagueness attacks on their
sentences.
Beckles, 137 S. Ct. at 903 n.4 (cleaned up). Rather than take Beckles (and Justice
Sotomayor’s concurrence) at its word—which is only that Johnson does not extend to
the advisory guidelines—the courts fixate on Justice Sotomayor’s use of the phrase
“leaves open the question” to conclude that Johnson could not apply to the mandatory
guidelines because that question is an open one. Blackstone, 903 F.3d at 1027;
Raybon, 867 F.3d at 629-30. But it is the decision in Beckles, not Johnson, that
16
purports to leave that question open. Brown, 139 S. Ct. at 15 (Sotomayor, J.,
dissenting). Although the advisory Guidelines are not subject to void-for-vagueness
challenges, this does not mean that the mandatory guidelines likewise are not.
Beckles, 137 S. Ct. at 894-96. Beckles did not answer this question because it was not
presented. These circuits have misinterpreted Beckles to preclude them from doing
what they may certainly do: apply the rule in Johnson to an identical residual clause
applied in the identical categorical way to fix the permissible range of sentences.
The Eleventh Circuit in Griffin drew a line between statutes and guidelines
and held that a guideline could never be void for vagueness—whether advisory or
mandatory. 823 F.3d at 1355. But it used bad reasoning. According to the Eleventh
Circuit, guidelines cannot be vague because they “do not establish the illegality of
any conduct and are designed to assist and limit the discretion of the sentencing
judge.” Id. But this equally describes the recidivist sentencing statute held void for
vagueness in Johnson. And as mentioned above, this Court declared sentencing
provisions void for vagueness in Godfrey, Maynard, and Stringer. The Eleventh
Circuit’s reasoning also “denies [] reality” by pretending that the mandatory “‘were
never really mandatory,’” even though courts applied them that way for two decades.”
Lester, 921 F.3d at 1330-31 (Rosenbaum, J., joined by Martin and J. Pryor, JJ.).
The Fifth, Eighth, and Tenth Circuits engaged in a retroactivity analysis under
Teague v. Lane, 489 U.S. 268 (1989), to define the scope of Johnson’s right. London,
937 F.3d at 506-07; Russo, 902 F.3d at 882-83; Pullen, 913 F.3d at 1280-81. That test
asks whether the application of the newly recognized right is “dictated by precedent”
17
and “apparent to all reasonable jurists” as opposed to “susceptible to debate among
reasonable minds.” Id. The Eighth Circuit derived this test from three decisions:
Teague, 489 U.S. at 301, Butler v. McKellar, 494 U.S. 407, 415 (1990), and Chaidez v.
United States, 568 U.S. 342, 347 (2013).
These decisions dealt with retroactivity, not the scope of a newly recognized
right. In Teague, this Court conducted a retroactivity analysis and determined that
the petitioners’ proposed new rule would not apply retroactively to cases on collateral
review. 489 U.S. at 301. Thus, this Court declined to consider “whether the fair cross
section requirement should be extended to the petit jury.” Id. at 309-10, 316. Because
Teague did not address the scope of the right asserted by the defendant, but rather
retroactivity, Teague provides no direct guidance on that issue. The same is true for
Butler and Chaidez, both involving retroactivity, not the scope of the right in
question. Butler, 494 U.S. at 411-13; Chaidez, 568 U.S. at 344. The issue here is not
whether Johnson is retroactive. It is. The issue is whether Johnson’s right
encompasses the mandatory guidelines.
Even so, as the First Circuit has since recognized, Teague’s retroactivity
analysis can provide a useful test for defining the scope of a newly recognized right,
and therefore the timeliness of a § 2255 based on that right. Shea, 976 F.3d at 70-71.
Under the Teague framework, the First Circuit reasoned, Johnson dictates the rule
that the petitioner asserted: namely, that § 4B1.2(a)(2)’s residual clause was
unconstitutionally vague and could not be applied to enhance the permissible range
of sentences a judge could impose. As a result, Shea “assert[ed]” the same right “newly
18
recognized” in Johnson, making his petition (filed within a year of that decision)
timely. 28 U.S.C. § 2255(f)(3). Id. at 72, 82; see also London, 937 F.3d at 512 (Costa,
J., concurring in the judgment) (recognizing usefulness of Teague’s framework to
determine timeliness under § 2255(f)(3)). 4
As Chaidez explains, “a case does not announce a new rule when it is merely
an application of the principle that governed a prior decision to a different set of
facts.” Chaidez, 568 U.S. at 347-48 (cleaned up).
Where the beginning point of our analysis is a rule of general
application, a rule designed for the specific purpose of evaluating a
myriad of factual contexts, it will be the infrequent case that yields a
result so novel that it forges a new rule, one not dictated by precedent.
Otherwise said, when all we do is apply a general standard to the kind
of factual circumstances it was meant to address, we will rarely state a
new rule for Teague purposes.
Id. at 348 (cleaned up). If anything, Chaidez confirms that Johnson’s newly
recognized right applies to the mandatory guidelines. Dimaya plainly shows that
Johnson announced “a rule of general application, a rule designed for the specific
purpose of evaluating a myriad of factual contexts,” id.; 138 S. Ct. at 1210-23, while
It makes sense, in terms of symmetry and history, that courts have imported into
the timeliness analysis the Teague test for whether a decision qualifies as “new.”
Before 1996, Congress provided no limitations period for filing a § 2255 motion. See
28 U.S.C. § 2255 (1995) (“A motion for such relief may be made at any time.”). When
Congress adopted a one-year limitations period in 1996, it crafted the language of
§ 2255(f)(3) against the backdrop of Teague, which was already well-established
precedent governing whether a decision qualifies as “new” for purposes of postconviction review, which Congress intended to codify. See 137 Cong. Rec. S8558-02,
1991 WL 111516, at *45, *48, *53 (June 25, 1991) (floor statement of Sen. Hatch)
(stating that the same limitations language in precursor legislation was “designed”
to “preserve and codify the important Supreme Court rulings in this area,” and citing
Teague as an example). E.g. Headbird v. United States, 813 F.3d 1092, 1095 (8th Cir.
2016) (recognizing legislative backdrop).
4
19
Booker establishes that the mandatory guidelines fixed the permissible range of
sentences, satisfying Beckles’ test for the substantive scope of Johnson’s rule. For
purposes of the statute of limitations under § 2255(f)(3), Mr. Jones needs no new
rule to have timely asserted the right announced in Johnson.
2. Booker held that the application of the mandatory guidelines violated a
defendant’s Sixth Amendment right to have a jury find facts “essential to his
punishment.” 543 U.S. at 232. Because, under a mandatory guidelines scheme,
judges were authorized to find facts “necessary to support a sentence exceeding the
maximum authorized by” a defendant’s guilty plea or a jury’s verdict, the mandatory
guidelines violated the Sixth Amendment. Id. at 244 (emphasis added). Booker made
clear that the mandatory guidelines “impose[d] binding requirements on all
sentencing judges.” Id. at 233. It was the “binding” nature of the guidelines that
triggered a constitutional problem: “[i]f the Guidelines as currently written could be
read as merely advisory provisions,” “their use would not implicate the Sixth
Amendment.” Id. And this “mandatory and binding” nature of the guidelines came
directly from Congress. Id. at 233-34; 18 U.S.C. § 3553(b) (directing that courts “shall
impose a sentence of the kind, and within the range” established by the Guidelines).
“Because they are binding on judges, we have consistently held that the Guidelines
have the force and effect of laws.” 543 U.S. at 234.
Booker rejected the idea that the availability of departures rendered the
guidelines anything less than mandatory and binding laws. “In most cases, as a
matter of law, the Commission will have adequately taken all relevant factors into
20
account, and no departure will be legally permissible. In those instances, the judge
is bound to impose a sentence within the Guidelines range.” Id. (emphasis added).
Indeed, Booker acknowledged that, had the district court departed from the
mandatory guidelines range in Booker’s case, the judge “would have been reversed.”
Id. at 234-35.
In Booker, the government argued that the guidelines did not violate the Sixth
Amendment because they “were promulgated by a Commission rather than the
Legislature.” Id. at 237. But Booker rejected the distinction. “In our judgment the
fact that the Guidelines were promulgated by the Sentencing Commission, rather
than Congress, lacks constitutional significance.” 543 U.S. at 237. It did not matter
“whether the legal basis of the accusation is in a statute or in guidelines promulgated
by an independent commission.” Id. at 239. Rather, “the Commission is an
independent agency that exercises policymaking authority delegated to it by
Congress.” Id. at 243.
Booker reflects this Court’s long understanding that the mandatory
guidelines range fixes the statutory penalty range. United States v. R.L.C., 503 U.S.
291, 297 (1992) (“The answer to any suggestion that the statutory character of a
specific penalty provision gives it primacy over administrative sentencing guidelines
is that the mandate to apply the Guidelines is itself statutory.”); 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) (noting “the principle that the
21
Guidelines Manual is binding on federal courts”). In R.L.C., this Court held that the
applicable “maximum” term of imprisonment authorized for a juvenile tried and
convicted as an adult was the upper limit of the guidelines range that would apply
to a similarly situated adult offender. 503 U.S. at 306-07. The decision in R.L.C.
makes sense only if the mandatory guidelines range was the statutory penalty
range.
Beckles cabins Johnson’s right to provisions that “fix the permissible range of
sentences.” 137 S. Ct at 892. The mandatory guidelines did just that. Booker, 543
U.S. at 232-243; Cross, 892 F.3d at 306 (“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”); Shea, 976 F.3d at 77 (“[T]he precedent
leaves no room for debate: when the pre-Booker Guidelines ‘bound [the judge] to
impose a sentence within’ a prescribed range, [] as they ordinarily did, they
necessarily ‘fixed the permissible range of sentences’ (s)he could impose[.]”) (quoting
Beckles, 137 S. Ct. at 892).
3. The First and Seventh Circuits have gotten it right. Nearly three years
ago, the Seventh Circuit held that for purposes of § 2255(f)(3), the new retroactive
rule announced in Johnson applies to the residual clause in the mandatory
guidelines. United States v. Cross, 892 F.3d 288, 299-306 (7th Cir. 2018). In doing
so, the Seventh Circuit rejected the approach taken by other circuits, explaining that
it “suffers from a fundamental flaw” because
22
[i]t improperly reads a merits analysis into the limitations period.
Section 2255(f)(3) runs from “the date on which the right asserted was
initially recognized by the Supreme Court.” 28 U.S.C. § 2255(f)(3)
(emphasis added). It does not say that the movant must ultimately prove
that the right applies to his situation; he need only claim the benefit of
a right that the Supreme Court has recently recognized. An alternative
reading would require that we take the disfavored step of reading
“asserted” out of the statute.
Id. at 293-94. The court held that the right asserted “was recognized in Johnson.”
Id. “Under Johnson, a person has a right not to have his sentence dictated by the
unconstitutionally vague language of the mandatory residual clause.” Id. at 294.
Because the appellants “assert precisely that right,” they therefore “complied with
the limitations period of section 2255(f)(3) by filing their motions within one year of
Johnson.” Id. To read § 2255(f)(3) any other way, the Seventh Circuit stated, “would
require that we take the disfavored step of reading ‘asserted’ out of the statute.” Id.
(citing Duncan v. Walker, 533 U.S. 167, 174 (2001)); see also London 937 F.3d at 511
(Costa, J., concurring in judgment) (recognizing that “our circuit and most others
addressing the issue require more than the statute does” and that “[r]estarting the
clock only when the Supreme Court has vindicated the prisoner’s exact claim
transforms a threshold timeliness inquiry into a merits one”).
On the merits, the Seventh Circuit concluded that the “same two faults” that
render the ACCA’s residual clause—the combined indeterminacy of how much risk
the crime of conviction posed and the degree of risk required—“inhere in the residual
clause of the guidelines.” Id. at 299. It “hardly could be otherwise” because the
clauses are identically worded and the categorical approach applies to both. Id.
Additionally, the Seventh Circuit held that the mandatory guidelines’ residual
23
clause implicated the twin concerns of the vagueness doctrine because it fixed the
permissible range of sentences. Id. at 305.
The court explained that Beckles “reaffirmed that the void-for-vagueness
doctrine applies to ‘laws that fix the permissible sentences for criminal offenses.’”
Id. (quoting Beckles, 137 S. Ct. at 892). “As Booker described, the mandatory
guidelines did just that. They fixed sentencing ranges from a constitutional
perspective.” Id. Because the Guidelines were “‘not advisory’” but “‘mandatory and
binding on all judges,’” id. (quoting Booker, 543 U.S. at 233-34), “[t]he mandatory
guidelines did . . . implicate the concerns of the vagueness doctrine.” Id.
The First Circuit recently joined the Seventh. Shea v. United States, 976 F.3d
63 (1st Cir. 2020). Unlike the Seventh Circuit, which focused on the meaning of
“assert,” the First Circuit focused instead on the portion of § 2255(f)(3) requiring
that the right asserted be “initially” or “newly” recognized by the Supreme Court,
and asked “if granting [the petition] would require the habeas court to forge a new
rule of law not recognized in Johnson.” Id. at 70. The court then laid out the
analytical framework for determining what constitutes a “new rule” established in
Teague v. Lane, 489 U.S. 288 (1989), and later explained in Chaidez v. United States,
568 U.S. 342 (2013):
[A] case announces a new rule if it breaks new ground or imposes a new
obligation on the government – that is, if the result [is] not dictated by
precedent[.] And a holding is not so dictated unless it would [be]
apparent to all reasonable jurists. But that account has a flipside: a case
does not announce a new rule when it is merely an application of the
principle that governed a prior decision to a different set of facts. So
when a court simply applie[s] the same constitutional principle to a
closely analogous case, it does not create a new rule.
24
Shea, 976 F.3d at 70-71 (alterations in original; internal quotations and citations
omitted).
Put another way, the First Circuit stated, “the Supreme Court does not
announce a new rule every time it applies the same constitutional principle to a new
regulatory scheme.” Id. at 73-74. Thus, “‘[i]f a proffered factual distinction between
the case under consideration and pre-existing precedent does not change the force
with which the precedent’s underlying principle applies, the distinction is not
meaningful, and any deviation from precedent is not reasonable.’” Id. at 74 (quoting
Wright v. West, 505 U.S. 277, 304 (1992) (O’Connor, J., concurring)).
Applying this analysis to Shea’s case after “an objective reading of the
relevant cases,” the First Circuit determined that “the government’s proffered
distinctions between the ACCA and the mandatory Guidelines do ‘not change the
force with which [Johnson’s] underlying principle applies’ when, as in most cases,
the defendant was ineligible for a departure from the Guideline range.” Id. at 74-75
(quoting Stringer v. Black, 503 U.S. 222, 237 (1992), and Wright, 505 U.S. at 304
(O’Connor, J., concurring)). The “jumble of words” in the mandatory guidelines’
residual clause, the First Circuit therefore held, is void for vagueness. Id. at 65, 7482.
4. Regardless of whether the Teague framework applies to the timeliness
question, the plain language of § 2255(f)(3) compels the conclusion that Mr. Jones’s
motion is timely. The statute provides that a motion is timely if filed within one year
of “the date on which the right asserted was initially recognized by the Supreme
25
Court.” 28 U.S.C. § 2255(f)(3) (emphasis added). According to Black’s Law
Dictionary, the word “assert” means to “[t]o state positively” or “[t]o invoke or enforce
a legal right.” ASSERT, Black’s Law Dictionary (11th ed. 2019); see also United
States v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017) (giving “assert” its ordinary
meaning). Thus, a motion is timely under § 2255(f)(3) if it “invokes” a right newly
recognized by the Supreme Court, and there is no assumption in common usage or
in law that one’s assertions are necessarily correct. To the contrary. As this Court
has put it, a § 2255 motion is timely if filed within one year of the date of the decision
from which it “[seeks] to benefit.” Dodd v. United States, 545 U.S. 353, 360 (2005).
Or, as the Seventh Circuit put it, a movant establishes timeliness simply by
“claim[ing] the benefit of a right that the Supreme Court has recently recognized.”
Cross, 892 F.3d at 294.
Here, Mr. Jones has asserted precisely this right. He contends that his
sentence is unconstitutional because he faced mandatory punishment under the
career-offender guideline due to a residual clause that suffers from the same two
features that combined to invalidate the residual clauses in the ACCA, § 16(b), and
§ 924(c). A claim based on such an assertion should be timely if filed within a year of
Johnson, and that remains true without regard to whether the claim ultimately
prevails on the merits. Again, the government’s alternative reading “suffers from a
fundamental flaw” in that it “improperly reads a merits analysis into the limitations
period.” Cross, 892 F.3d at 293.
26
That alternative reading would violate a core principle of statutory
interpretation by rendering the word “asserted” superfluous, and for no reason.
Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (explaining that the rule
against surplusage “requir[es] a court to give effect to each word ‘if possible,’” unless
the word was “‘inadvertently inserted or if repugnant to the rest of the statute’”
(quoting Karl Llewellyn, The Common Law Tradition 525 (1960)). Again, the Seventh
Circuit has explained this point succinctly: Section 2255(f)(3) “runs from ‘the date on
which the right asserted was initially recognized by the Supreme Court.’” Cross, 892
F.3d at 293-94. “It does not say that the movant must ultimately prove that the right
applies to his situation; he need only claim the benefit of a right that the Supreme
Court has recently recognized.” Id. at 294. To read § 2255(f)(3) any other way, the
Seventh Circuit recognized, “would require that we take the disfavored step of
reading ‘asserted’ out of the statute.” Id. (citing Duncan v. Walker, 533 U.S. 167, 174
(2001)).
5. Ignoring this plain language, the Fourth Circuit has doubled down on its
analysis in Brown, explaining that “Brown established an interpretive framework for
determining whether the Supreme Court has recognized a right under § 2255(f)(3),
holding that the Court has done so only if it is ‘formally acknowledged th[e] right’ in
a holding.” Rumph, 824 F. App’x at 168 (emphasis and alteration in original). But
Congress did not use the term “holding”; it used the term “right.” This word choice is
important because a “right” is broader than the “holding” of a particular case.
Compare HOLDING, Black’s Law Dictionary (11th ed. 2019) (“A court’s
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determination of a matter of law pivotal to its decision.”), with RIGHT, Black’s Law
Dictionary (11th ed. 2019) (“Something that is due to a person by just claim, legal
guarantee, or moral principle.”).
The First Circuit relied on this point in Shea. Specifically, the First Circuit
recognized that “ ‘Congress in § 2255 used words such as “rule” and “right”’ because
‘it recognizes that the Supreme Court guides’—and indeed binds—‘the lower courts
not just with technical holdings’ confined to the precise facts of each case ‘but with
general rules that are logically inherent in those holdings.’ ” Shea v. United States,
976 F.3d at 73 (quoting Moore, 871 F.3d at 82). Because a “rule or right recognized in
one case can (and often does) control another with a ‘different set of facts,’ . . . “a
decision striking one law often compels a court to undo another.” Id. (citing Chaidez,
568 U.S. at 348).
Judge Costa relied on this same distinction, arguing that the Fifth Circuit has
erred by “requir[ing] a holding when the statute requires only Supreme Court
recognition of the right.” London, 937 F.3d at 511 (Costa, J., concurring in the
judgment).
Judge Gregory also recognized this point in his dissent in the Fourth Circuit’s
decision in Brown. He criticized the majority for limiting the “right” recognized in
Johnson to the “narrow holding” of the decision. Brown, 868 F.3d at 304 (Gregory, J.,
dissenting); see id. at 303 (majority opinion) (explaining its decision by reference to
“the narrow nature of Johnson’s binding holding”). The statutory language, Judge
Gregory reasoned, “is more sensibly read to including the reasoning and principles
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that explain it.” Id. at 304. That reading better effectuates Congress’s choice to use
the word “right” instead of “holding,” and it has since been validated by the
conclusions in Dimaya that Johnson’s rule has a “straightforward application” to
other, non-ACCA residual clauses.
This reading also accords with § 2255(f)(3)’s purpose as a limitations period.
As the Supreme Court has explained, a statute of limitations is a “threshold bar.”
Wood v. Milyard, 566 U.S. 463, 466 (2012). Any statute-of-limitations analysis
necessarily comes before a merits analysis, and parties can freely waive limitations
defenses. See id. Thus, it makes sense that Congress would frame § 2255(f)’s
limitations period in terms of the “right” “asserted” by the prisoner, as that pre-merits
requirement matches the threshold nature of a statute of limitations. The contrary
interpretation conflates timeliness with the merits, something that Congress surely
did not intend. See Cross, 892 F.3d at 293 (rejecting government’s interpretation
because it “improperly reads a merits analysis into the limitations period”).
6.
The Sixth Circuit’s approach also renders the statute of limitations
redundant: a motion is timely only if the Supreme Court has already decided the
issue it presents on the merits, but if the Supreme Court has not already decided
that issue on the merits, the motion is untimely. For defendants like Mr. Jones,
Raybon’s interpretation of § 2255(f)(3) creates a logical and practical impossibility.
If the “right initially recognized by the Supreme Court” requires a precise
holding by the Supreme Court in the specific context of the mandatory guidelines, it
is impossible for the Supreme Court to ever recognize the right, or for any court to
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adjudicate the merits, given the abrogation of the mandatory guidelines. No
prisoners sentenced under the mandatory guidelines has an active direct appeal,
and more than one year has passed since their convictions became final. Their § 2255
motions will therefore always be premature because the Supreme Court has not
applied Johnson to the mandatory guidelines, and that Court could never precisely
decide the issue because it would always be too early, in “an infinite loop.” ZunigaMunoz v. United States, No. 1:02-cr-124, Doc. 79, at 8 (W.D. Tex. Apr. 26, 2018).
Congress could not have meant for those like Mr. Jones to be trapped in an unjust
temporal dimension with no opportunity for redress.
In sum, because the Sixth Circuit’s decision is inconsistent with both this
Court’s precedent and the text of § 2255(f)(3), and is incorrect on its own terms, review
is necessary.
III.
This case is an excellent vehicle for addressing this important
question.
“Regardless of where one stands on the merits of how far Johnson extends,
this case 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.” Brown,
139 S. Ct. at 14 (Sotomayor, J., dissenting from the denial of certiorari). And because
the guidelines are no longer mandatory, it is impossible to resolve this issue on direct
appeal.
It is no answer that some of these offenders ultimately may not be eligible for
relief. This Court in Welch decided the question of Johnson’s retroactivity even
though his eligibility for relief remained in dispute. Welch, 136 S. Ct. at 1263-64. In
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any event, Mr. Jones is plainly eligible, and the government has never contended
otherwise. In the absence of the residual clause, he does not have two prior
convictions that qualify as a predicate offense under U.S.S.G. § 4B1.2, so he is not a
career offender. Without the career offender enhancement, his guideline range for
the 52.5 grams of crack for which he was held accountable is 70 to 87 months under
the ordinary crack guideline at U.S.S.G. § 2D1.1 (in light of retroactive guideline
amendments), based on a total offense level of 23 and a criminal history category of
IV. (See Supplemental Motion to Vacate Pursuant to 28 U.S.C. § 2255, R. 51.) And
now that the Fair Sentencing Act of 2010 has been made retroactive, see First Step
Act, Pub. L. No. 115-391, sec. 404(b) (2018), his conviction for an offense involving
50 grams or more of crack with a recidivist enhancement requires just a ten-year
statutory minimum, which today makes his guideline sentence 120 months. 21
U.S.C. § 841(b)(1)(B); U.S.S.G. § 5G1.1(b). The career offender designation therefore
increases the bottom of his guideline range from 120 months to 262 months—an
increase of nearly 12 years.
Yet, as the law stands, Mr. Jones must continue to serve this illegal sentence
simply because he was sentenced in the Sixth Circuit, while untold numbers of
offenders obtain relief from their sentences in the First and Seventh Circuits and in
the district courts in the District of Columbia. Unless this Court grants certiorari to
resolve the issue, the liberty of federal prisoners sentenced under the mandatory
residual clause will continue to depend on the luck of geography.
This case also squarely presents the issue. The Sixth Circuit granted the
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certificate of appealability in these § 2255 proceedings and affirmed based on its
binding precedent in Raybon—and did so after Dimaya and Davis. Should this Court
hold that Johnson applies by its own force to the mandatory guidelines, Mr. Jones
would prevail on the merits of his claim, and he would be immediately released. It is
exceedingly unlikely, should he no longer be deemed a career offender as a legal
matter, that the sentencing court would require Mr. Jones to serve longer than the
applicable § 2D1.1 sentencing range for his unremarkable drug offense, which he has
already overserved by over seven years. See U.S. Sent’g Comm’n, Quick Facts – Crack
Cocaine Trafficking Offenses at 2 (2020) (showing that just 3 percent of crack
offenders were sentenced above the applicable range). Mr. Jones’s liberty interests
are urgent and compelling.
IV.
This Court should also resolve whether the mandatory guidelines’
residual clause is void for vagueness.
The two circuits (the First and Seventh) that have definitively reached the
merits of this issue after Beckles has held that the mandatory guidelines’ residual
clause is void for vagueness. Cross, 892 F.3d at 307; Shea, 976 F.3d at 80-82. These
decisions are correct. The language of § 4B1.2(a)(2)’s residual clause at issue in Cross
and Shea (and here) is identical to the ACCA’s residual clause struck down in
Johnson (§ 924(e)(2)(B)(ii)). When mandatory, the guidelines operated as statutes, so
could be void for vagueness like statutes. See Part II.2, supra. Even the government
at one point recognized the inevitability of this conclusion, when it affirmatively
asserted at oral argument in Beckles v. United States that the mandatory guidelines
are subject to vagueness challenges. Tr. Oral Arg. at 28, 41, Beckles v. United States,
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137 S. Ct. 886 (2017) (No. 15-8544). There, the government easily recognized that
mandatory guidelines, unlike advisory guidelines, “impose[d] an insuperable barrier
that requires a specific finding of fact before the judge can sentence outside the
guidelines.” Just as the residual clauses at issue in Johnson, Dimaya, and Davis are
void for vagueness, § 4Bl.2(a)(2)'s mandatory residual clause must also be void for
vagueness.
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be granted.
JENNIFER NILES COFFIN
Assistant Federal Defender
Federal Defender Services
of Eastern Tennessee, Inc.
800 South Gay Street, Suite 2400
Knoxville, Tennessee 37929
(865) 637-7979
Counsel for Joshua R. Jones
March 17, 2021
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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.