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Sixth Circuit: Savings Clause Available for Retroactive Case of Statutory Interpretation Decided While § 2255 Motion on Appeal

After Kevin McCormick’s § 2255 motion was denied, he appealed. While that appeal was pending, he filed an application in the Sixth Circuit for authorization to file another § 2255 motion. In both, he challenged his mandatory 15-year Armed Career Criminal Act (“ACCA”) sentence. The Sixth Circuit denied both of the filings, but it suggested that McCormick could file a savings clause petition, arguing for relief under a new Supreme Court case decided after his § 2255 motion was denied and was pending on appeal. He took the advice and filed his petition.

The case in question was Mathis v. United States, 136 S. Ct. 2243 (2016), which ruled that where a state statute defines a single crime with multiple ways to commit that crime, it is an indivisible statute and the “modified categorical approach” (“MCA”) could not be applied to determine if the offense qualifies under the ACCA. It was the MCA that the sentencing court used to find McCormick’s prior Kentucky third-degree burglary fit under the ACCA for the 15-year sentence. Without that penalty, McCormick faced up to 10 years.

After Mathis (and thus without the MCA applied), Kentucky’s third-degree burglary could not qualify for the ACCA because it was overbroad and not a match for generic burglary under the ACCA. The Government admitted as much, and the Court agreed. But the question was whether McCormick could use the savings clause to raise a Mathis claim. The Government conceded Mathis was retroactive and that McCormick’s 15-year sentence couldn’t be imposed today, but it argued that he couldn’t use the savings clause as a way to challenge his sentence now.

To file a savings clause petition under 28 U.S.C. § 2241 in the district court, the Sixth Circuit requires that a prisoner show that § 2255 is “inadequate or ineffective” by meeting certain criteria: (1) a new Supreme Court statutory interpretation case that’s retroactive, (2) the claim couldn’t have been raised in the first § 2255 motion, and (3) the sentence or conviction, if left in place, would be a “miscarriage of justice or a fundamental defect.” Hill v. Masters, 836 F.3d 591 (6th Cir. 2016).

The Government argued that McCormick could have raised his Mathis claim in his first § 2255 motion while it was on appeal. But the Court disagreed: “The government’s position overlooks a critical point: petitioners must show that the intervening case could not have been invoked in the initial § 2255 motion,” the Court said. McCormick’s initial § 2255 motion was denied by the district court three months before Mathis was decided. “Lacking access to a time machine, McCormick did not have an opportunity to invoke Mathis before the district court ruled on his initial § 2255 motion,” the Court explained.

The Court also reasoned that because McCormick’s sentence would be a miscarriage of justice if left in place (because he wasn’t an armed career criminal anymore), the savings clause must be made available to him. It also suggested that the district court could grant immediate release because McCormick had already served beyond his non-ACCA Guideline range.

Accordingly, the Sixth Circuit reversed the denial of McCormick’s savings clause petition and remanded for resentencing. See: McCormick v. Butler, 977 F.3d 521 (6th Cir. 2020).

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McCormick v. Butler



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