In the other big Supreme Court case today, the Court held in Johnson v. U.S. that the residual clause of the Armed Career Criminal Act statute is unconstitutionally vague.
That’s big news for the Third Circuit (and every other federal court) because it’s going to mean another big round of criminal sentencing upheaval as courts wrestle with how the decision applies to past sentences.
The title of this post comes from Berman’s important post today on Sentencing Law & Policy today, which raises critical practical post-Johnson questions: who is going to put in the work to find the inmates with Johnson claims, and then who is going to represent them? He writes:
…. I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim. And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in feder[a]l prison.
I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners. In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid.
And in another post today, Berman makes this provocative point:
The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation.
It will be interesting to see whether Johnson helps nudge courts like the Third Circuit to catch up.
Today, Tuesday, June 30, the Supreme Court vacated and remanded over 40 pending cases under Johnson, although on a quick glance it appears that only one of those arose out of the Third Circuit.
Interesting. Alito concurring in this and other Johnson GVRs: “In holding this petition and now in vacating and remanding the decision below in this case, the Court has not differentiated between cases in which the petitioner would be entitled to relief if the Court held (as it now has) that the residual clause of the Armed Career Criminal Act of 1984, 18 U. S. C. Sec. 924(e)(2)(B)(ii), is void for vagueness and cases in which relief would not be warranted for a procedural reason. On remand, the Court of Appeals should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.”
The Third Circuit case is a 2255 where the petitioner alleged that appellate counsel was ineffective for failing to challenge application of the career offender enhancement because two of his prior convictions ran consecutively. (Not a vagueness challenge to the residual clause.) The district court opinion is online but the CA3 opinion is not on the CA3 website or the Villanova archive for some reason.