Monday, February 1, 2016
Thomas H. Gabay has posted Using Johnson v. United States to Reframe Retroactivity for Second or Successive Collateral Motions (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
The Armed Career Criminal Act (the “ACCA”) provides a mandatory minimum sentence of fifteen years in federal prison for felons convicted of being in possession of a firearm, who have also been previously convicted three times of a “violent felony.” In Johnson v. United States the Supreme Court, per Justice Scalia, struck down one portion of this statute on the ground that it was unconstitutionally vague. This portion included, in addition to an enumerated list of “violent felonies” that can result in a conviction, a catchall category that defined a violent felony as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
This Note examines whether federal prisoners, whose convictions and sentences under this now-unconstitutional prong of the ACCA were final before Johnson, and who have previously petitioned for habeas corpus, may again petition in federal court based on Johnson’s holding. In other words, the question, which has become the subject of a widening circuit split and is under review by the Supreme Court, is whether Johnson’s new rule about the unconstitutionality of the ACCA has been “made retroactive . . . by the Supreme Court” to federal prisoners seeking habeas corpus relief in federal court. This Note addresses this question and the circuit split that has emerged on the issue, and concludes that Johnson has indeed been “made retroactive.” Finally, this Note offers a modified framework within which courts may assess the retroactivity of new rules to second or successive habeas motions.