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Welch v. United States, USSC No. 15-6418, cert. granted 1/8/16

Questions presented:

I. Whether the District Court was in error when it denied relief on Petitioner’s §2255 motion to vacate, which alleged that a prior Florida conviction for “sudden snatching,” did not qualify for ACCA enhancement pursuant to 18 U.S.C. §924(e).

II. Whether Johnson v. United States, 135 S. Ct. 2551 (2015), announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review. Furthermore, Petitioner asks this Court to resolve the Circuit split which has developed on the question of Johnson retroactivity in the Seventh and the Eleventh Circuit Courts of Appeals.

Lower court order: (no citation available); DocketScotusblog page

On the same day as the blockbuster Obergefell v. Hodges, the Supreme Court issued another decision which, while attracting far less attention, will change the lives of a substantial number of people in this nation. In Johnson v. United Statesthe Court struck down as unconstitutionally vague the “residual clause” of the Armed Career Criminal Act, eliminating onerous sentencing provisions (a mandatory minimum of 15 years confinement and a maximum sentence of life) for certain repeat offenders convicted of being a felon in possession of a gun. With the grant in Welch, the Court is now positioned to determine the reach of this new rule, deciding whether it will apply retroactively to those whose direct appeals have expired. The answer the Court gives could afford or deny early release to hundreds of federal inmates.

Welch, who is one such inmate, of course takes the position that Johnson is retroactive. Less predictably, so does his opponent. As is explained here and here, the Solicitor General has concluded that Johnson announced a new substantive rule of constitutional law, and therefore is retroactive under Teague v. Lane, 489 U.S. 288 (1989). With both parties on the same side, those who know about such things predict the Court will invite another entity to present the case that Johnson is prospective only.

Obviously the ins and outs of ACCA, as well as limitations on habeas relief for federal prisoners, are mostly of interest to federal practitioners. Those in our state currently have the benefit of the retroactive application that the high court will now consider. Price v. United States, 795 F.3d 731 (7th Cir. 2015). For those in state practice, the ongoing litigation over the statute provides an opportunity to refresh one’s grasp of the vagueness doctrine. Given Wisconsin’s metastasizing criminal code, it’s worth remembering that in creating new crimes, the legislature has an obligation to spell out, with at least some degree of clarity, just what is prohibited.

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