Issues
Should the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), apply retroactively, such that a person sentenced under the now unconstitutional residual clause of the Armed Career Criminal Act could have her sentence vacated or remanded?
In this case, the Supreme Court will decide whether Johnson v. United States, 135 S. Ct. 2551 (2015), should apply retroactively. If so, the Court may decide whether the sudden snatching of a purse constitutes a “violent felony” under the Armed Career Criminal Act (“ACCA”). Gregory Welch was sentenced to a mandatory minimum fifteen years of prison under the ACCA, because he had three previous violent felony convictions. Subsequently, Welch challenged his sentence, arguing that one of the predicate convictions, Florida-law strong-arm robbery, was not a violent felony. Both the district court and the U.S. Court of Appeals for the Eleventh Circuit disagreed, relying on the so-called “residual clause” of the ACCA. On appeal to the Supreme Court, Welch contends that Johnson struck down the residual clause as unconstitutional. Welch and the United States both argue that Johnson should be applied retroactively. Further, Welch argues that because Johnson should be applied retroactively and his conviction was based solely on the portion of the ACCA that was deemed unconstitutional, his conviction should be vacated. But the United States argues that the case should be remanded to the Eleventh Circuit to decide whether a sudden snatching of a purse constitutes a violent felony under the constitutionally valid “elements prong” of the ACCA. The Court’s decision could increase ACCA-related litigation and decrease the length of some defendants’ sentences.
Questions as Framed for the Court by the Parties
- Was the District Court in error when it denied relief on Petitioner’s § 2255 motion to vacate, which alleged that a prior Florida conviction for “sudden snatching” did not qualify for ACCA enhancement pursuant to 18 U.S.C. § 924(e)?
- Did Johnson v. United States, 135 S. Ct. 2551 (2015), announce a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review?
Facts
Police believed that the suspect of an armed robbery was at petitioner Gregory Welch’s apartment. See United States v. Welch, 683 F.3d 1304, 1306 (11th Cir. 2012). The police went to Welch’s apartment and someone other than Welch allowed them to enter. See Id. The police entered the apartment and conducted a “limited protected sweep.” While doing so, they found Welch in a bedroom. See Id.
The police took Welch outside where they received a radio call indicating that the robbery suspect had been arrested. See Welch, 683 F.3d at 1306. However, the suspect’s gun had yet to be found. See Id. The police asked Welch if they could search the apartment but he refused. See Id. The officers stated that they would then have to get a search warrant, which would take time. See Id. Welch ultimately allowed the police to search his apartment and signed a consent form. The police then conducted a search of the apartment and found a gun and ammunition that belonged to Welch, not the robbery suspect. See Id. The police then placed Welch inside a police van without handcuffing him. Welch admitted that the gun and ammunition belonged to him. See Id.
Before his criminal trial, Welch moved to suppress the pistol and his admission in U.S. District Court for the Southern District of Florida. See Welch, 683 F.3d at 1306. The district court denied Welch’s motion. See Id. The court found that the police searched the apartment only after Welch provided written consent; the police had not made any threats based upon Welch’s refusing to allow the police to search his apartment; and the police read and explained the consent form to Welch before he signed it. See Id. But the court found that the “protective sweep” was unlawful because the police did not lawfully enter the apartment. See Id. Nevertheless, the district court held that Welch’s consent to the officers’ search of the apartment that ultimately lead to their finding the gun was lawful. See Id. In addition, the court found that Welch’s admitting to owning the gun was not tainted by the unlawful protective sweep. See Id.
After the court denied his motion, Welch pled guilty to felony possession of a firearm under 18 U.S.C. § 922(g)(1), but reserved his “right to appeal the denial of his motion to supress.” See Welch, 683 F.3d at 1307. Because of three prior “violent felony” convictions, Welch was classified as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C § 924(e)(1) (“section 924”). In such cases, section 924 requires a minimum fifteen-year prison sentence. Accordingly, Welch was sentenced to a minimum of fifteen years in prison. See Id.
Welch appealed his sentence to the U.S. Court of Appeals for the Eleventh Circuit. He challenged the denial of his motion to dismiss, and argued that one of his violent felonies, a 1996 strong-arm robbery conviction involving the snatching of a purse, did not constitute a violent felony under the ACCA. See Welch, 683 F.3d at 1308–09. Affirming the district court, the Eleventh Circuit concluded that the initial search of the apartment was unlawful, but that Welch consented to a lawful search of the apartment and his consent was not coerced. See Id. In addition, the court found that snatching a purse was a violent felony. See Id. at 1311–12.
The Eleventh Circuit relied on the so-called “residual clause” of section 924(e)(2)(B)(ii), which defines a violent felony as a crime that carries at least a one-year prison sentence and “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Welch suggested that the U.S. Supreme Court had struck down the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015), decided after his district court decision. But the Eleventh Circuit read the Court’s decision as only addressing “the elements clause requirement of ‘physical force,’ not the residual clause requirement.” See Welch, 683 F.3d at 1313. The Eleventh Circuit concluded that a strong-arm robbery conviction satisfied the residual clause.
Welch petitioned the Supreme Court for writ of certiorari, which the Court granted on January 8, 2016.
Analysis
The Court will determine whether Johnson created a substantive rule that applies retroactively to collateral review cases. See Brief for Petitioner, Gregory Welch at 16. Additionally, the Court will decide whether Welch can use Johnson to argue that his conviction under the ACCA should be vacated. See Brief for Petitioner at 35. Welch argues that Johnson introduced a substantive rule because the decision changed whom the law punishes. See Brief for Petitioner at 19. The United States agrees with Welch and posits that Johnson held the Due Process Clause of the Fifth Amendment limited the scope of the ACCA. See Brief for Respondent, United States at 17.
Regarding the second issue, Welch argues that his conviction was based solely on the residual clause of ACCA, and since Johnson voided the residual clause, Welch’s conviction should be vacated. See Brief for Petitioner at 36. But the United States contends that the Court should remand the case to the Eleventh Circuit to determine whether Welch could be convicted under the “element clause” of the ACCA, section 924(e)(2)(B)(i). See Brief for Respondent at 43. That clause defines a violent felony as a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”
JOHNSON PROVIDES A SUBSTANTIVE RULE THAT APPLIES RETROACTIVELY
Welch argues that a rule is substantive when it states that a type of punishment can no longer be imposed on an individual. See Brief for Petitioner at 19. By comparison, a procedural rule provides a “manner of determining . . . culpability.” See Id. at 21. Examples of procedural rules include “admissibility of evidence, permissible jury instructions, and what representations may be made to a jury.” See Id. at 16. Welch explains that Johnson determined the residual clause was unconstitutional because it was vague. See Id. at 19. Welch argues that the Johnson holding is substantive because it holds that the residual clause is no longer valid and therefore cannot be used to promulgate a punishment. See Id. at 17. Welch compares the Johnson holding to the Court’s holding in Miller v. Alabama, 132 S. Ct. 2455 (2012). See Id. at 22. In Miller, the Court held that some juvenile offenders could be punished without parole if procedural requirements were met. See Id. Welch contends that the Miller holding had a mix of procedural and substantive aspects, yet was deemed substantive. See Id. Welch claims that the Johnson holding has only substantive elements and therefore is easily categorized as substantive. See Id. Welch suggests that the Court narrowed the scope of the ACCA and applied the holdings retroactively in cases such as Begay v. United States, 553 U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122 (2009),. See Id. at 23-24.
Furthermore, Welch asserts that Montgomery v. Louisiana, No. 14-280, 2016 WL 280758 (U.S. Jan. 25, 2016), extended the Court’s holding in Teague v. Lane, 489 U.S. 288 (1989). See Brief for Petitioner at 15. While Teague held that procedural rules do not apply retroactively, Montgomery held that substantive rules apply retroactively. See Id. at 25. Welch argues that procedural rules are not applied retroactively because of concerns over comity and finality. See Id. at 17. But substantive rules, if not applied retroactively, would permit a court to sentence a criminal to a punishment that is no longer lawful. See Id. Hence, Welch contends that the same considerations do not prevent the substantive rules from being applied retroactively. See Id. Welch adds that, even if Congress could amend the ACCA to expand the scope to areas originally covered by the residual clause, the Johnson holding is still substantive and retroactive. See Id. at 25. Welch explains that it does not matter whether Congress could eventually amend the law, because such amendments would be ex post facto, and could not apply to those individuals seeking relief under Johnson. See Id. at 27.
The United States agrees that Johnson introduced a substantive rule that applies retroactively. See Brief for Respondent at 17. The United States argues, however, that Johnson used the Due Process Clause of the Fifth Amendment to find ACCA’s residual clause unconstitutional. See Id. The holding, according to the United States, limits the scope of possible punishments available for defendants and therefore is a substantive rule. See Id. There is no procedural component to Johnson’s holding. See Id. at 28. Additionally, the United States suggests that substantive rules may also be formed by holdings that interpret statutory terms and narrow their scope. See Id. at 22. The Johnson holding, therefore, falls into the category of a new substantive rule. See Id. at 24.
JOHNSON’S APPLICATION TO THE ACCA
Welch argues that he has already demonstrated that his conviction under the ACCA relied on previous convictions for the Florida robbery, and that those previous convictions only satisfied the ACCA through the residual clause. See Brief for Petitioner at 35. Welch also contends that the Eleventh Circuit concluded that the Florida robbery only satisfied the residual clause. See Id. at 36. Welch argues that his Florida robbery does not include the elements of “violent force” necessary to satisfy the limited scope of the ACCA. See Id. Thus, Welch concludes that the Eleventh Circuit decision to deny his appeal should be reversed. See Id. at 37.
The United States agrees with Welch on the applicability of Johnson to an extent. See Brief for Respondent at 26. The United States argues that cases such as Welch’s that fell under the residual clause should not be vacated automatically. See Id. at 28. Instead, the Court should remand Welch’s case to the Eleventh Circuit to consider whether his prior conviction for the Florida robbery satisfies the remaining elements of the ACCA. See Id. The United States points out that Welch was convicted in 1996 and therefore could not have been convicted of “robbery by sudden snatching” which was enacted in 1999 as Welch contends. See Id. at 44. In addition, the United States argues that the Eleventh Circuit has yet to decide whether the Florida robbery is considered a violent felony under the ACCA and should be given a chance to analyze this new issue on remand. See Id. at 43–44.
Discussion
The Court will decide whether Johnson created a substantive rule that Welch can use to attack the district court’s decision, which held that purse snatching constitutes a violent felony under the ACCA. If the Court applies Johnson retroactively, federal courts may face an increased burden caused by ACCA-related litigation, while those sentenced under the ACCA may have their sentences reduced. See Brief of Scholars, in Support of Petitioner at 27, Brief of the Court-Appointed Amicus Curiae, in Support of the Judgment Below at 49.
WHAT IS THE BURDEN ON FEDERAL COURTS?
Amici supporting Welch argue that federal courts will not be unduly burdened by retroactively applying Johnson to final cases. See Brief of Scholars at 27; Brief of Amici Curiae Federal Public and Community Defenders and the National Association of Federal Defenders (“FPCD”), in Support of the Petitioner at 21–22. A group of federal court scholars argues that the federal criminal justice system can conduct resentence hearings without straining judicial resources. See Brief of Scholars at 27. They suggest that the number of people who are in a similar situation to Welch is “substantially [less] than 6,000,” and that not all of them will require full resentencing hearings. See Id. at 28. The Federal Public and Community Defenders and the National Association of Federal Defenders (collectively, “FPCD”) argue that if caseloads increase, the costs are necessary because prisoners facing lengthy ACCA sentences have limited recourse available to them. See Brief of FPCD at 19–20.FPCD at 19–20. Even if the Court declines to apply Johnson retroactively, FPCD suggests that there will be an “inevitable flood of original habeas petitioners” to Court, so increased litigation will result either way. FPCD suggests that there will be an “inevitable flood of original habeas petitioners” to Court, so increased litigation will result either way. See id. at 21.
But Court-Appointed Amicus Curiae Helgi C. Walker argues that retroactive application of Johnson would impose large costs on the criminal justice system. See Brief of the Court-Appointed Amicus Curiae at 49. Walker points out that over 4,000 defendants were sentenced under the ACCA between 2008 and 2014, and a large number of these defendants will likely claim that they were sentenced under the unconstitutionally vague residual clause. See id. at 50. Walker posits that these claims would require numerous resentencing hearings. See id. at 51. In addition, Walker worries that these new hearings would require supplemental briefing. See id. Finally, Walker argues that retroactive application of Johnson would create precedent to invalidate other vague laws, which could result in reopening final cases in other criminal contexts and the imposition of an even greater burden on the judiciary. See id. at 51–54.
Conclusion
Both Welch and the United States agree that the rule in Johnson should apply retroactively. See Brief for Petitioner at 15–16, Brief for Respondent at 16. As a result, Welch argues that his conviction should therefore be overturned. See Brief for Petitioner at 15. The United States, however, believes the Eleventh Circuit should be given the opportunity to decide whether Welch’s case meets the elemental prong of the ACCA. See Brief for Respondent at 16. The Court’s decision could affect sentences imposed under the now unconstitutional residual clause of the ACCA and could place new burdens on federal courts. See Brief for Petitioner at 22, Brief for Respondent at 19, Brief of Amicus Curiae Scholars of Federal Courts and Sentencing, in Support of Petitioner at 27.
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Additional Resources
- Lyle Denniston, Courts to Decide Johnson Retroactivity, SCOTUSblog (Jan. 8, 2016).