by Dale Chappell
The good news is that the Supreme Court of the United States has declared yet another residual clause unconstitutional. The not-so-good news is that the last time the Court did this, the lower courts created all sorts of roadblocks to stop prisoners from taking advantage of the ruling.
Because the new ruling in United States v. Davis, 139 S. Ct. 2319 (2019), mirrors the Court’s residual clause decision in Johnson v. United States, 135 S. Ct. 2551 (2015), looking at how the lower courts treated Johnson claims gives us a map for filing Davis claims.
In Davis, the Supreme Court held that the so-called residual clause of 18 U.S.C. § 924(c) is unconstitutional, meaning that any conviction obtained under this provision is now dead.
The Court’s ruling is the third in a series of decisions invalidating vague “catch-all” provisions, which began with Johnson, declaring the residual clause of the Armed Career Criminal Act (“ACCA”) unconstitutional.
Johnson had the awesome impact of reducing the sentences of thousands of federal prisoners, even sending some of them home years early. In an attempt to stop the bleeding, the courts developed creative ways to deny Johnson filers, even if it meant that some of them would remain in prison serving illegal sentences.
Is this fair? Is it even legal? Let’s take a look at where the courts stand — because they’re not all on the same page.
Proving Davis Applies To Your Case
When filing a motion for relief under 28 U.S.C. § 2255 based on Davis, the burden is on you to show that the decision actually applies to your case — that your § 924(c) conviction was obtained under the residual clause — before the court will even hear your claim. How heavy this burden is depends on which circuit you’re filing in.
There appears to be two different standards of proof the courts require for Johnson claims: the “may have been” standard and the “more likely than not” standard. Under the more lenient “may have been” standard, you only need to show that the sentencing court may have relied on the residual clause for your § 924(c) conviction. But to meet the harsher “more likely than not” standard, you must provide some evidence the court had to rely on the residual clause.
Five circuits have adopted the “may have been” standard for Johnson claims under § 2255. These courts said this lower bar is only fair because sentencing judges were not required to specify which ACCA clause they relied on, so how would a movant be able to prove the court relied on the residual clause? As one judge said, requiring anything higher than the “may have been” standard ‘would render Johnson relief virtually impossible to obtain.’” United States v. Booker, 240 F.Supp.3d 164 (D.D.C. 2017).
Support for the “may have been” standard also comes from the Supreme Court’s decision in Stromberg v. California, 283 U.S. 359 (1931), which held that if a conviction “may have” relied on an unconstitutional clause of a statute, it must be set aside. See Raines v. United States, 898 F.3d 680 (6th Cir. 2018) (citing Stromberg in adopting the “may have been” standard for Johnson claims).
The following circuits have adopted the “may have been” standard for residual clause claims under Johnson: United States v. Winston, 850 F.3d 677 (4th Cir. 2017); Raines v. United States, 898 F.3d 680 (6th Cir. 2018); Cross v. United States, 892 F.3d 288 (7th Cir. 2018) (need not prove Johnson applied but only “assert” as a claim); United States v. Geozos, 870 F.3d 890 (9th Cir. 2017). Although the D.C. Circuit has not yet adopted a standard for Johnson claims, in United States v. Sheffield, 832 F.3d 296 (D.C. Cir. 2016), the court allowed a Johnson claim where the residual clause was the only “possible basis” for finding that the prior conviction was a crime of violence. Also compare Booker , supra, with United States v. West, 314 F.Supp.3d 223 (D.D.C. 2018) (rejecting Booker and adopting the “more likely than not” standard).
Seven circuits have set the bar higher and adopted the “more likely than not” standard, which is also called the “preponderance of the evidence” standard. Black’s Law Dictionary defines this standard as proof “sufficient to incline a fair and impartial mind to one side of the issue rather than the other side.” In other words, there must be some evidence offered to show there’s a better than 50/50 chance the court relied on the residual clause.
The instigator in imposing such a high burden on movants asserting Johnson claims was the Eleventh Circuit, a court that I believe has consistently slammed the door in the faces of prisoners filing for postconviction relief. For example, In re Baptiste, 828 F.3d 1387 (11th Cir. 2016), the court held that a prisoner may file only one second or successive (“SOS”) § 2255 application with the same claim, even if the law has changed. In McCarthan v. Dir. Goodwill Ind., 851 F.3d 1076 (11th Cir. 2017), a divided en banc court banned nearly all use of the savings clause of § 2255(e), while other circuits were expanding use of the savings clause. In Velez Scott v. United States, 890 F.3d 1239 (11th Cir. 2018), the court reaffirmed that a claim that the prosecutor purposely withheld vital evidence would not allow a SOS § 2255, no matter how egregious the error. In United States v. St. Hubert, 918 F.3d 1174 (11th Cir. 2019), 11 judges filed concurring and dissenting opinions from the denial of rehearing en banc, beautifully exposing the dysfunctional family that is the Eleventh Circuit, where it seems nobody can agree on anything. And in another telling Johnson case, Inre Clayton, 829 F.3d 1254 (11th Cir. 2016), all three judges filed concurring opinions in the judgment only because none of them agreed with binding precedent that required them to dismiss the prisoner’s SOS § 2255 application.
I highlight the Eleventh Circuit because, according to the United States Sentencing Commission, district courts in the Eleventh Circuit have handed down more ACCA sentences than any other circuit — more than 26 percent of all ACCA sentences across the country in 2016 alone. This means that these harsh rules put in place by the Eleventh Circuit have potentially blocked relief for more illegal ACCA sentences nationwide than any other court.
The “more likely than not” standard was adopted by the Eleventh Circuit early on for Johnson claims in Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017). One of the reasons for this high hurdle the court gave was that such a rule avoids treating Johnson claimants “differently than all other § 2255 movants claiming a constitutional violation.”
But the court ignored the fact that the Supreme Court expressly rejected the “more likely than not” standard for movants filing ineffective assistance of counsel claims, by far the most common constitutional violation claim under § 2255. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held that “a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Instead, the Court said a movant must show only a “reasonable probability” that but for counsel’s errors the outcome would’ve been different. And the Court has reaffirmed this holding numerous times. See Kyles v. Whitley, 514 U.S. 419 (1995) (collecting cases).
The Beeman Court also urged that finality being the “fundamental purpose” of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires a heavier burden on Johnson filers. This would ensure that none of the burden would fall on the government, which the court said would undermine finality.
Since the “more likely than not” standard requires convincing a “fair and impartial mind,” I can’t help but wonder if a judge who believes that AEDPA means he must side with the government and ignore an illegal sentence in the name of “finality” is a “fair and impartial mind.”
The following circuits have adopted the “more likely than not” standard for bringing Johnson claims: Dimott v. United States, 881 F.3d 232 (1st Cir. 2018); Villanueva v. United States, 893 F.3d 123 (2d Cir. 2018) (citing with approval district court’s use of “more likely than not” standard); United States v. Peppers, 899 F.3d 211 (3d Cir. 2018), but see United States v. Griffin, 2018 U.S. Dist. LEXIS 159377 (E.D. Pa. 2018) (adopting Winston’s “may have been” standard for a first motion, despite Peppers); United States v. Clay, 921 F.3d 550 (5th Cir. 2019); Garcia-Hernandez v. United States, 915 F.3d 558 (8th Cir. 2019); United States v. Driscoll, 892 F.3d 1127 (10th Cir. 2018); Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017).
Proving the Court Relied on the Residual Clause
It would be a “tall order” for a movant to prove that the sentencing court relied on the residual clause, Chief Judge R. Guy Cole of the Sixth Circuit said in his concurring opinion in Raines, supra, because the record almost never says which clause the judge relied on. So, how would you prove the sentencing court relied on the residual clause? Usually by pointing to case law. But would that be the case law in effect at the time of your sentencing or current case law taking into account developments in the law, including Supreme Court cases interpreting the methods used to qualify prior convictions for the residual clause? Turns out, the answer isn’t that simple.
Some courts say that applying current case law would be best since subsequent decisions say what the courts should have been doing all along. See Cross, supra, (noting that change in case law signals an “abrupt shift in law” that must be applied and not ignored); Peppers, supra, (recognizing circuit split on whether current case law applies to Johnson claims but agreeing current case law controls).
The Eleventh Circuit, on the other hand, has rejected use of current case law, saying that Johnson cannot act as a “portal” to bring new case law into an old sentencing proceeding. See In re Hires, 825 F.3d 1297 (11th Cir. 2016). Instead, the Eleventh Circuit requires the § 2255 court to travel back in time and apply the case law in effect at the time of the original sentencing to see if the residual clause was used. For example, in Swatzie v. United States, 758 Fed. Appx. 833 (11th Cir. 2019), the court denied a § 2255 Johnson claim because case law at the time of sentencing in 2000 allowed the court to look at Swatzie’s conduct to find that he entered a building to qualify his prior Florida burglary conviction as a “generic” burglary under the ACCA. The court simply said that Beeman required as much and denied his motion. The Supreme Court refused to hear his appeal.
However, when it works in the government’s favor, the Eleventh Circuit does allow current case law to be used. See Bailey v. United States, 2015 U.S. Dist. LEXIS 187446 (M.D.F.L. 2015) (Bailey’s Florida resisting arrest with violence was under the residual clause at sentencing, Johnson overturned that case law, the Eleventh Circuit then held it now qualifies under the elements clause, and relief was denied). The idea is that even if the court were to grant relief, it would be harmless error because the court would have to impose the same ACCA sentence under current case law.
Davis Claims Under Second or Successive § 2255
Assuming that Davis is retroactive for SOS § 2255 motions because it is a substantive constitutional ruling the same as Johnson, getting approval from the court of appeals would also depend on which circuit you’re filing in. First, let’s go over the two “gates” you must pass through to get approval to file another § 2255 motion in the district court.
The first gate requires you to make a “prima facie showing” that your motion would “rely” on Davis. A prima facie showing simply means “a sufficient showing of possible merit to warrant fuller exploration by the district court.” Bennett v. United States, 119 F.3d 468 (7th Cir. 1997). Every court has since adopted Judge Posner’s definition of “prima facie showing” in Bennett.
“Possible merit” is not supposed to mean the court of appeals digs into the merits of your claim to see if you would actually win. But Johnson changed a lot of that. After being inundated with thousands of SOS § 2255 applications with Johnson claims, some courts fortified the first gate by looking at whether the motion would win in order to decide whether to grant permission to file another § 2255 motion based on Johnson.
In his concurring opinion in St. Hubert, supra, Eleventh Circuit Judge Bill Pryor (a former contender for the Supreme Court) justified making the prima facie showing gate more difficult, saying, “How could a ‘fuller exploration’ be warranted when it would serve only to waste the district court’s time?” Judge Martin answered Pryor in her dissent, saying that the court’s job is to merely screen the application, not decide the motion for the district court.
The second gate requires “actual evidence” that your motion “relies” on Davis. The courts have generally applied whichever standard of proof they have adopted for Johnson claims, “may have been” or “more likely than not,” to pass through this gate. But some have recognized a difference between SOS applications filed in the court of appeals and first § 2255 motions filed in the district court and apply the lower standard to SOS applications. See, e.g., Peppers, supra (applying “may have been” standard to SOS applications, but “more likely than not” standard for merits determination in the district court).
Also note that once an SOS application has been approved, there is no difference in determining the merits of a subsequent motion filed in the district court from a first § 2255 motion. See Geozos, supra.
Another issue we must address is whether a stipulation to the § 924(c) conviction in your plea agreement forecloses Davis relief. The rule seems to be that the claim is not barred by the stipulation. In Fugitt v. United States, 2016 U.S. Dist. LEXIS 131591 (W.D. Wash. 2016), the government argued that Fugitt’s stipulation to the ACCA sentence in his plea agreement foreclosed his Johnson claim. The court, however, rejected this and held that “the benefit of the doubt lies with the petitioner” and granted Fugitt relief because he could show his prior under current law fell under the residual clause.
And what if your § 924(c) conviction was attached to more than one predicate, say a drug charge and a crime of violence? The Eleventh Circuit had granted a stay in Eusebio-Berroa v. United States, 2019 U.S. App. LEXIS 4476 (11th Cir. 2019), waiting on Davis in order to answer this question (the Eleventh Circuit had held that the residual clause of § 924(c) was not affected by Johnson). Eusebio-Berroa’s case was one of the many notorious “stash house” robbery setups by the government popular in South Florida, and his § 924(c) conviction was attached to both the drug conspiracy and the Hobbs Act robbery conspiracy (courts have held that Hobbs Act robbery conspiracy falls under the residual clause).
The flood of Johnson claims under § 2255 compelled the courts to harden rules for gaining relief. Because Davis is not much different from Johnson, movants filing Davis claims will likely face the same obstacles that Johnson filers have faced.
About the author: Dale Chappell is a staff writer for Criminal Legal News and Prison Legal News. For over a decade, he has helped prisoners fix their wrongful convictions and sentences, with dozens being immediately released from prison. He is a member of the National Lawyer’s Guild and was a 20-year career firefighter before becoming an advocate for prisoners. He is the author of Chappell’s Postconviction Relief Guidebook: Section 2255, A Handbook for Prisoners and Lawyers, the first in a series of postconviction books written in conjunction with Attorney Brandon Sample (available early 2020).
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