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Seventh Circuit gives retroactive effect to Johnson’s invalidation of the ACCA’s residual clause

Benjamin Price v. United States, 7th Circuit Court of Appeals No. 15-2427, 8/4/15

Price seeks to bring a successive collateral attack under 28 U.S.C. § 2244(b)(3) to the enhancement of his sentence under the Armed Career Criminal Act. He claims that Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the imposition of an enhanced sentence under the residual clause of ACCA violates due process, announces a new substantive rule of constitutional law that the Supreme Court has categorically made retroactive to final convictions. The Seventh Circuit agrees.

Price had mounted an unsuccessful collateral attack against his sentence back in 2009, so under § 2255(h)(2) he can’t pursue a second or successive motion for collateral relief unless the proposed claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Price easily meets three of the four requirements. Johnson announces a new rule; it rests on the notice requirement of the Due Process Clause of the Fifth Amendment, and thus announces a new rule of constitutional law; and the rule was previously unavailable to Price. While he raised and lost a different (though related) argument under the law as it stood during his first collateral attack, he never alleged then that ACCA’s residual clause itself was unconstitutionally. (Slip op. at 2-3). The question, then, is whether the Supreme Court made Johnson retroactive to final convictions, and that turns on whether the new rule is “substantive” instead of “procedural”; the former are given retroactive effect, the latter only prospective effect, e.g., Tyler v. Cain, 533 U.S. 656 (2001); Schriro v. Summerlin, 542 U.S. 348 (2004).

Johnson, we conclude, announced a new substantive rule. In deciding that the residual clause is unconstitutionally vague, the Supreme Court prohibited “a certain category of punishment for a class of defendants because of their status.” Saffle [v. Parks], 494 U.S. [484,] 494 [(1990)]. A defendant who was sentenced under the residual clause necessarily bears a significant risk of facing “a punishment that the law cannot impose upon him.” Summerlin, 542 U.S. at 352. There is no escaping the logical conclusion that the Court itself has made Johnson categorically retroactive to cases on collateral review. ….

We add a cautionary note in closing. Our review of Price’s substantive claim is necessarily preliminary, and as we just noted, our holding is limited to the conclusion that Price has made a prima facie showing of a tenable claim under Johnson. The district court will have the opportunity to examine the claim in more detail as the case proceeds. That court is authorized under § 2244(b)(4) to dismiss any claim that it concludes upon closer examination does not satisfy the criteria for [a successive motion for collateral relief]. …. (Slip op. at 6-7).

At least one other circuit has refused to give Johnson retroactive effect. In re Rivero, ___ F.3d ___ (11th Cir. 2015). This portends a circuit split that the Supreme Court will have to resolve.

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