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Federal criminal practitioners
spent over a decade trying to figure out what the heck a “violent felony” was
under the Armed Career
Criminal Act’s so-called “residual clause.” In 2015, the Court put an end
to this misery and held, in Johnson v.
United States, that the residual clause is unconstitutionally vague. Johnson and its issue have liberated
numerous federal prisoners from lengthy sentences. Johnson has also forced federal courts to wade into the muck that
is the Anti-Terrorism
and Effective Death Penalty Act (“AEDPA”).
Johnson made it possible for men and women to file motions to
vacate and correct their sentences under 28 U.S.C. § 2255,
which otherwise requires prisoners to file such motions within 1 year after
their conviction (after appeals) becomes final. There are two types of people
who file these motions: (1) first-time petitioners, and (2) “second or
successive” petitioners. First-time Johnson
petitioners had one year to file motions to vacate their sentences because Johnson was a “right . . . initially
recognized by the Supreme Court [that] has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review.” 28
U.S.C. 2255(f)(3). SOS petitioners have an additional hurdle to clear: they
must receive a certification from the Court of Appeals, which confirms that the
motion “contain[s] . . . a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable.”
28 U.S.C. § 2255(h)(2).
Damon
Raines fell into the first category: he had never filed a § 2255 motion
before. Raines is a federal prisoner who was subjected to the ACCA’s 15-year
mandatory minimum because he had been convicted of three crimes, which the
district court believed were predicate felonies: (1) a 1991 Michigan conviction
for assault with intent to do great bodily harm less than murder; (2) a 2002
federal conviction for distributing cocaine base; and (3) a 2002 federal
conviction for collecting credit by extortionate means. On his own, Raines
filed his first § 2255 motion to vacate his sentence within one year of Johnson, arguing that his third
conviction for collecting credit by extortionate means is no longer a violent
felony now that the ACCA no longer has a residual clause.
The government raised a number of
procedural defenses to the claim, arguing that the court should not even
address whether that conviction remains a predicate ACCA felony conviction:
forfeiture, procedural default, and timeliness. The Sixth Circuit swiftly
rejected each of these attempts to obviate the need to address the merits.
Raines adequately preserved his Johnson
claim in the district court by citing the case throughout his pro se briefs. He
had cause for not challenging his ACCA enhancement on direct appeal because Johnson was a brand new rule announced
after his conviction became final, and he suffered prejudice because (as the
court later explained), the application of the enhancement was
unconstitutional. Finally, Raines’s motion was timely because he filed the
motion less than a year after Johnson was
decided.
But the greatest hurdle for
Raines to clear was the government’s claim that he could not obtain relief
because the sentencing judge did not make clear whether his convictions were “violent
felonies” under the residual clause or the two other clauses of the ACCA. As
the panel noted, the government (and the 10th and 11th Circuits) require
first-time petitioners to fulfill “the seemingly improbable task of proving
that [their] sentencing judge[s] relied only on the residual clause in
sentencing him.” That was the rule of Potter
(which we covered here),
which held that motions for relief from the judgment must fail unless the 2255
movant can prove that his ACCA sentence was based only on the residual clause. Interestingly,
Judges Cole, Gibbons, and Bush expressed disagreement with Potter’s central holding, noting that “[t]his burden . . . presents
a tall order when a movant’s sentencing record . . . is silent as to which ACCA
clause a district court applied.” What is more, the panel noted, such silence
was the norm and made sense before Johnson.
Despite the panel’s disagreement
with Potter, it was bound by that
decision, and so the three judges had to decide whether Potter precluded Raines from obtaining review of his conviction.
And here, the panel reined in Potter’s
reach, reading it to apply only when “(1) the movant is bringing a second or
successive motion and (2) there is evidence that the movant was sentenced under
a clause other than the residual clause, such as the sentencing judge’s
averment that the movant was indeed sentenced under another clause.”
Chief Judge Cole went further and
wrote separately to explain why Potter’s
holding “that a second-or-successive habeas petitioner must show that a
sentence was based only on the
residual clause” is wrong.
He began by noting that the
Supreme Court granted relief to a similarly situated man in Welch v.
United States, when it held that Johnson’s
holding was retroactive to cases on collateral review. Welch’s case came to the
Supreme Court as an appeal from a denial of a certificate of appealability. Habeas
petitioners must obtain a COA from a court, which has decided that the petitioner
has made a “substantial showing” that he has been denied a constitutional right.
28 U.S.C. §
2253(c)(2). The Supreme Court held that Welch had made such a showing even
though the record was not clear as to whether the judge imposed the ACCA
enhancement under the residual clause. In fact, the sentencing court had said
that Welch’s predicate convictions qualified under the residual clause and the elements clause. Despite this
fact, the Supreme Court held that telegraphed that when a petition “pairs a
new-rule-of-constitutional-law challenge and an old-rule-of-statutory-law
challenge satisfies § 2253(c)’s constitutional right requirement . . ., then
such a petition also satisfies § 2255(h).”
In Chief Judge Cole’s view, “[w]hen
a petitioner’s sentencing record is unclear as to which clause the petitioner
was sentenced under, the petitioner satisfies the ‘new constitutional rule’
requirement” of § 2255(h)(2) “so long as the challenge includes a claim under Johnson.” Under those circumstances “any
Johnson error would not be harmless,”
because the sentence may have rested on a ground that the Constitution forbids.
For those who bore with me
through all of this procedural discussion, I hope to provide a payoff. Once the
judges reached the merits of Raines’s claim, they held that his 2002 federal
conviction for using extortionate means to collect an extension of credit, 18
U.S.C. §894(a)(1), is not a “violent felony” for ACCA purposes. This is so
because it does not have as an element the actual threatened, or attempted use
of force because a person can commit the crime by causing harm to a person’s
reputation or property.
Raines also provides some clues about the outcome of a battle that
is already brewing. In June, the en banc court heard arguments in Williams
v. United States (audio here).
The court asked the parties to address whether the § 2255 movant has the burden
of showing that his sentence was based only on the residual clause and what
evidence should be used to decide whether the residual clause was the cause of
the 15-year enhancement. Stay tuned.
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