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U.S. District Court Holds Residual Clause of Federal Three-Strikes Law Unconstitutional

by Dale Chappell

The U.S. District Court for the Southern District of California granted postconviction relief on June 12, 2019, to a federal prisoner serving a mandatory life sentence, holding that the so-called “residual clause” of the federal three-strikes law is unconstitutional.

The case came before the Court in a motion for relief under 28 U.S.C. § 2255 filed by Thomas Morrison.

He’s been fighting his mandatory life sentence under the three-strikes law for the last 23 years. This time it worked.

Morrison was sentenced in 1996 after he pleaded guilty to federal bank robbery. The Government then invoked the mandatory life sentence penalty under 18 U.S.C. § 3559(c)(1)(A)(i) because the bank robbery was a violent felony, plus Morrison had two prior California robbery convictions. The court found that Morrison’s prior convictions qualified, and it had no option except to impose the sentence. Morrison appealed, challenging the use of his priors, but lost.

Eighteen years later, Morrison filed his first § 2255 motion arguing that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), declaring that the Armed Career Criminal Act (“ACCA”) residual clause unconstitutional, equally invalidated the nearly identical residual clause of the three-strikes law under § 3559(c)(2)(F)(ii). The § 2255 court disagreed and denied his motion.

On appeal, the U.S. Court of Appeals for the Ninth Circuit recognized that the Supreme Court had extended Johnson to the residual clause of another statute in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and remanded the case to the § 2255 court “to reconsider its ruling in light of that decision.”

The Ninth Circuit also noted that the Supreme Court had granted certiorari in what would become United States v. Davis, 139 S. Ct. 2319 (2019), declaring the residual clause of 18 U.S.C. § 924(c) unconstitutional (and decided just days after Morrison’s § 2255 was granted).

On remand, the district court found that the reasoning in Johnson, when applied to the residual clause of § 3559(c), rendered it unconstitutional and granted Morrison’s motion.

At the time of Morrison’s sentencing, a prior conviction qualifying as a “violent felony” under § 3559(c) had to fall under one of three clauses: (1) the “elements clause” requiring the conviction had “as an element the use, attempted use, or threatened use of physical force against the person of another,” (2) the “residual clause,” requiring that the conviction involved “a substantial risk that physical force against the person of another may be used,” or (3) the “enumerated offenses clause,” requiring the conviction matched one of the listed offenses. § 3559(c)(2)(F).

Johnson declared unconstitutional language nearly identical to the residual clause contained in § 3559(c), finding that it violated due process because it required a judge to take a “guess” at what would fit under that clause. Without the residual clause, the question was whether California robbery could fall under one of the other clauses.

California robbery prohibits taking property from someone “by means of force or fear.” Cal. Penal Code § 211. “Fear” is defined as “fear of an unlawful injury to the person or property of the person robbed.” Id. § 212.

The Ninth Circuit has held that California robbery does not fit under any of the clauses to qualify for the ACCA penalty. United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015). And the § 2255 Court here found that it also does not fall under the enumerated offenses clause of § 3559(c) because it includes injury to property, which doesn’t match the listed offenses in § 3559(c).

The only clause left that Morrison’s California robbery could have fit under is the residual clause, the Court concluded. But Morrison wasn’t out of the woods yet.

He still had to show that his sentence was imposed under the residual clause. To do this, Morrison had to show that the record or case law at the time of sentencing supported that the sentencing court “may have” relied on the residual clause. The judge in 1996 didn’t say which clause she was relying on because it didn’t matter at the time. And case law at the time didn’t say which clause of California robbery it could have fallen under.

The Government urged the Court to apply the strict rule adopted by the Eleventh Circuit, requiring a movant to prove it was “more likely than not” that the sentencing court relied on the residual clause.

But the Court rejected the Government’s position. “Indeed, imposing such a burden would lead to inconsistent results, as any judge who sentenced a defendant prior to Johnson was doubtlessly unaware that the sentencing transcripts would later be combed for the words ‘elements clause’ or ‘residual clause.’”

With no binding case law at the time of Morrison’s sentencing, and because the judge didn’t say which clause she relied on under § 3559(c), the Court concluded that his sentence “may have” relied on the residual clause. That was enough to invoke Johnson relief, the Court ruled.

Accordingly, the Court granted Morrison’s motion, vacated his mandatory life sentence under the three-strikes law, and ordered a new presentence report detailing his conduct while in prison over the last 20-plus years. See: Morrison v. United States, 2019 U.S. Dist. LEXIS 99568 (S.D. Cal. 2019). 

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