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Wednesday, December 16, 2015

Is the Solicitor General Playing a Shell Game With the Supreme Court Over Johnson Retroactivity?

I've already written a pair of posts about the very significant current conflict among the circuits over the retroactive effect of the Supreme Court's June 2015 in Johnson v. United States, and the extent to which the Court may need to use an application for extraordinary relief (perhaps including an "original" writ of habeas corpus) to resolve that split--given (1) the unavailability of certiorari to review denials of second-or-successive habeas petitions; (2) government's agreement that Johnson may be retroactively enforced; and (3) the one-year statute of limitations, which likely requires all Johnson-based claims to be filed by June 26, 2016. And in my most recent post, I noted that the Solicitor General had already recommended denial of review in one case by reference to three pending "original" applications--perhaps hinting that it would support the Court's using one or all of those cases as a vehicle for settling the circuit split (and clarifying that Johnson is indeed retroactive).

Or not.

In the past week, the government has effectively mooted one of the three original cases (by completely reversing a position it had taken earlier in different litigation involving the same prisoner), and has filed briefs opposing extraordinary relief in the other two. As I explain in the post that follows, these actions (and the arguments in the briefs) give rise at least to the appearance that, even though the Solicitor General agrees that Johnson is retroactive on the merits and should therefore be enforceable by federal prisoners through both original and second-or-successive applications for post-conviction relief, the government is perfectly content to run out the clock--and to not support efforts to have the Supreme Court so hold before next June's deadline.

I.  Mooting Butler

Of the pending "original" applications, one of the most compelling was that filed by Juan Deshannon Butler, a prisoner in the Tenth Circuit (which had held that, whether or not Johnson is retroactive, it had not yet been "made retroactive" by the Supreme Court). Butler's case was an easy one because there was no question that, but for ACCA's residual clause, he could only have served a maximum of ten years in prison (and he'd already served more). In other words, if Johnson applied to Butler's case, he was entitled to an order of immediate release. 

But Butler had another habeas petition pending in the U.S. District Court for the District of Arizona, arguing that one of his prior convictions didn't qualify under ACCA as a statutory matter because, under the Supreme Court's 2009 decision in Chambers, not all "escape" offenses constitute "violent felonies" under ACCA. The government had previously opposed this claim--and even obtained an order from the district court denying it on the merits. Yet, curiously, once Butler had filed his original habeas petition, the government filed a new brief withdrawing its opposition, and suggesting that Butler was entitled to relief on the Chambers claim. As a result, last Wednesday, the district court ordered Butler's release--which led the parties to voluntarily dismiss his original habeas application before the Supreme Court. It's always nice for the government to concede error (if error there was), but the timing of the complete-180 on Butler's Chambers claim seems more than a little curious...

II.  Opposing Triplett

Then, on Monday, the government filed its response to the petition for an original writ of mandamus in Triplett, opposing such relief because, among other things, it is not entirely clear whether Johnson will make a difference in Triplett's case--that is, whether, but for the residual clause, he would not have received the same sentence. That argument isn't that surprising; in effect, the government is saying, Triplett isn't a great vehicle for resolving the Johnson question because it might not actually matter in his case.

But the government's opposition also suggested that mandamus would not be appropriate in any Johnson case because "the courts of appeals are 'openly divided' on the question whether this Court has 'made' Johnson retroactive to cases on collateral review. The absence of a definitive ruling from this Court on that question, coupled with the division of opinion on the issue in the courts of appeals, shows that petitioner’s right to relief, if any, is not 'clear and indisputable.'" Thus, even though the government agrees that Johnson is retroactive (and has been "made retroactive" by prior Supreme Court decisions), its opposition in Triplett rests on the argument that a writ of mandamus won't ever be appropriate where the lower courts are divided--even if the government is on the same side as the petitioner in arguing that one side of that split is clearly erroneous.

And although the government noted the serious timing issue raised by AEDPA, it suggested that such a concern could not "make it appropriate to conduct review through mandamus where the conditions for issuing the writ are not otherwise satisfied." Instead, the government suggested, the Court should wait for an ordinary petition for certiorari (which could conceivably come through the Fifth Circuit, which has held that Johnson is not even substantive--let alone that it has not been "made retroactive"), or rely upon the pending original habeas cases, including Sharp.

III.  Opposing Sharp

Then, today, the Solicitor General filed his response to the original habeas petition in Sharp--and argued against it. In particular, the SG's brief rests almost entirely on the prospect of "ordinary" certiorari review via a district court's denial of a first 2255 motion in a case out of the Fifth Circuit, and notes that a petition for certiorari before judgment has now been filed (although still not docketed) in one such case--Harrimon v. United States. Thus, the SG concludes, "The continued availability of certiorari review in that context undercuts petitioner’s suggestion . . . that exceptional circumstances exist that warrant the exercise of habeas jurisdiction."

There are two obvious problems with this line of reasoning: First, the government is hardly conceding that it will support certiorari in Harrimon (or a similar case), especially the extraordinary remedy of certiorari before judgment. After all, in its oppositions in both Triplett and Sharp, it argued that AEDPA's one-year statute of limitations is not a justification for extraordinary relief not supported by other factors; why would certiorari before judgment be any different?

Second, even if the government were eventually to support certiorari in a case out of the Fifth Circuit (perhaps after judgment), time is increasingly of the essence. Recall from the recent spat over Texas's request for an extension in Texas v. United States that the Solicitor General took the view that, for a case to be briefed and argued in the "ordinary course" during the current Term, it would need to be considered by the Justices no later than their January 15 Conference. And yet, the petition in Harrimon hasn't even been docketed yet--let alone scheduled such that the government's brief in response (assuming one is called for) would be filed in time to be distributed for the January 15 Conference. (I'm not optimistic.) Nor does there appear to be any other ordinary certiorari petition from the Fifth Circuit in which full briefing will be complete in time for the January 15 Conference.

Thus, the clock is running out for the Supreme Court to issue a decision that will clarify that Johnson is retroactive in time for virtually all of the prisoners who would benefit from such a ruling to take advantage of it. As we explained in our amicus brief in Butler, there's no jurisdictional obstacle to the issuance of relief in an original habeas case like Sharp, and there's no reason why an extraordinary writ should be denied just because there's a remote, entirely speculative possibility that an ordinary remedy "might" be available in time.

Thus, the Supreme Court should ignore the Solicitor General in Sharp, and set the matter for plenary briefing and argument. Otherwise, the Solicitor General just might succeed in running out the clock on thousands of federal prisoners--whether or not he means to.

Posted by Steve Vladeck on December 16, 2015 at 05:33 PM in Steve Vladeck | Permalink


The Sixth Circuit sided with your view on Johnson's having been made retroactive today:


Posted by: Asher Steinberg | Dec 17, 2015 3:23:52 PM

You are right -- I am confusing two different cases. But I stand by my assertion that Johnson's applicabilityt to the caree offender provision's residual clause is anything but clear.

Posted by: Da Man | Dec 17, 2015 1:04:01 PM

Nice to hear from Mr. Hopwood.

Posted by: Joe | Dec 17, 2015 12:12:02 PM

Thanks Patrick for that clarification. I agree with you Steve that there needs to be a quick decision and that the institutional question here on extraordinary writs is peculiar, given the SG takes the position that Johnson is retroactive. As you note, in many of these cases, if Johnson applies retroactively, the habeas petitioner can be immediately released. Thus, some of these prisoners are needlessly serving time. You would hope that factor would favor quick action.

Posted by: Shon Hopwood | Dec 17, 2015 11:52:29 AM

da man is misinformed or confused about sharp. All but one of Sharp's convictions come under the residual clause. Even the government concedes this in its BIO. Unlike Triplett, there are no vehicle issues with Sharp apart from those inherent in original habeas and the govt doesn't argue otherwise.

Posted by: Sharp | Dec 17, 2015 10:46:29 AM

Why do you downplay (if not ignore) the fact that Sharp involves the career offender provision --and thus creates an extra (if not insurmountable) layer of complexity. To conclude that a career offender could bring a second or successive petition based on Johnson, there would have to be clear SCOTUS precedent saying that the advisory Guidelines are subject to vagueness challenges AND that errors in calculating the advsisory range can be corrected by means of a 2255 petition. I know you want the Supreme Court to address the question of Johnson's retroactivity in ACCA cases, but you can't credibly fault the DOJ for opposing a second or susccessive application in a career offender case.

Posted by: Da Man | Dec 17, 2015 10:14:11 AM

Shon, Steve, in the normal course BIOs do not contain any information about attorneys in OSG, other than the SG as the counsel of record. Rather, the named attorneys are the AAG for the litigating division (in this case criminal), and the attorney in that litigating division's appellate staff that drafted the brief. In all the BIOs I've filed as government counsel, not once has the Deputy and Assistant who reviewed and edited been included on the brief. Nothing should be read into Dreeben's omission on these filings. SCOTUSBlog ran a feature on the DOJ's appellate staffs which I believe makes this point--although OSG is very involved in finalizing BIOs, the listing of counsel does not reflect that.

Posted by: Patrick | Dec 17, 2015 9:40:19 AM

Shon -- I'm loathe to speculate too much about why particular folks are or are not on the briefs. But I _do_ think there's a larger, institutional question here--about whether the SG really ought to be categorically opposed to extraordinary relief in all cases (and, if so, whether that diminishes the weight of its opposition in individual cases).

Posted by: Steve Vladeck | Dec 17, 2015 9:34:30 AM


It's interesting to me that Michael Dreeben's name is nowhere to be seen in these cases. People I know think he had a lot to do with changing the SG's position on habeas petitioners seeking resentencing, where those petitioners are serving illegal sentences based on judicial decisions interpreting a statute that are later overturned. So it's very surprising that he doesn't seem to have played a role here in these briefs in opp.

Posted by: Shon Hopwood | Dec 17, 2015 9:27:38 AM

Asher -- There's some uncertainty over just what the Fifth Circuit held in Williams, so I can easily imagine the SG opposing cert., at least before judgment, until/unless it's clear that the Fifth Circuit views Johnson as not retroactively enforceable in _any_ 2255 case.

But in any event, it's not at all clear to me that there will be time to set Harrimon for briefing and argument in the "ordinary course" even _if_ the SG doesn't oppose cert. before judgment. Why should the Court wait for a possibility when they've got the issue properly teed up and in front of them now?

Posted by: Steve Vladeck | Dec 17, 2015 8:01:21 AM

I wonder if certiorari before judgment is a little less extraordinary when one knows what the judgment below would be, i.e., when the issue raised by the petition for cert before judgment has previously been ventilated in the court below. I also wonder whether it's somewhat less extraordinary than original habeas. And in any event, the timing problems seem sufficient to justify cert before judgment here. Of course, if Harrimon can't get decided in time they should take up Sharp

Posted by: Asher Steinberg | Dec 16, 2015 11:27:45 PM

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