The Johnson Retroactivity Circuit Split Plot Thickens...

A few weeks ago, I wrote a rather lengthy post about the circuit split over whether the Supreme Court's June 2015 decision in Johnson v. United States both (1) is "substantive" (and therefore retroactively enforceable by federal prisoners filing their initial claims for collateral post-conviction relief); and (2) has been "made retroactive" by the Supreme Court (and can therefore provide the basis for a second-or-successive application for collateral post-conviction relief). As I explained then, unlike the typical circuit split, a combination of the jurisdictional limitations imposed by AEDPA and the government's litigating position (that the answer to both questions is "yes") has seemed, at least to date, to deprive the Supreme Court of a "normal" way to resolve this circuit split, suggesting instead that the matter be resolved through the Court's seldom-utilized authority to issue extraordinary writs, including an "original" writ of habeas corpus. As importantly, the clock is running; it's widely believed that AEDPA's one-year statute of limitations will require all Johnson-based claims to be filed by June 26, 2016, no matter when the Supreme Court clarifies its retroactive application.

Well, the plots, such as they are, are thickening...

The Supreme Court now has before it at least three petitions for original habeas writs (In re Butler, In re Sharp, and In re Triplett), along with at least one petition for a writ of mandamus (also in Triplett). My own view is that original habeas makes more sense in this context than mandamus, especially since the Justices may agree, even in holding that Johnson is retroactive, that they hadn't previously "made" Johnson retroactive, and so the lower-court decisions refusing to certify second-or-successive petitions aren't erroneous (and, thus, subject to correction via mandamus). For more on this, see the habeas scholars' amicus brief in support of the petition for original habeas in Butler (that I co-authored). But whether it's habeas or mandamus, the bottom line would be the same: using the Court's power to issue extraordinary writs to sidestep AEDPA.

To that end, the Court has ordered the Solicitor General to respond (a very unusual step in an extraordinary writ case) to the habeas petitions in Butler and Sharp, and to the mandamus petition in Triplett. Those responses are all due sometime in December, and it will be fascinating to see what position the SG takes, since the government generally supports Johnson retroactivity, generally dislikes extraordinary relief, and has yet to take a position on whether all Johnson claims must be filed by June 26, 2016 (such that the Supreme Court would have to take and decide the issue sooner, rather than later).

One clue may be found in a brief the Solicitor General filed on Wednesday in opposition to certiorari in another case--Hammons v. United States. Here's the key passage:

If the Court decides to exercise its jurisdiction under the All Writs Act, 28 U.S.C. 1651(a), to resolve the conflict in the courts of appeals on the question whether Johnson has been made retroactive to cases on collateral review, there is a petition for a writ of mandamus currently pending before the Court that expressly asks the Court to address that question through its authority under the All Writs Act and therefore, unlike this petition for a writ of certiorari, specifically addresses the strict standards applicable to an exercise of that jurisdiction. See In re Triplett, No. 15-625 (filed Nov. 10, 2015). The government's response to the petition for a writ of mandamus in Triplett is currently due on December 14, 2015. 

There are also three pending petitions for a writ of habeas corpus that ask the Court to address the question of Johnson's retroactivity through the Court's authority to issue writs of habeas corpus under 28 U.S.C. 2241. See In re Butler, No.. 15-578 (filed Nov. 3, 2015); In re Triplett, No. 15-626 (filed Nov. 10, 2015); In re Sharp, No. 15-646 (filed Nov. 16, 2015). . . . The Court has ordered a response from the United States in Butler, which is currently due on December 18, 2015. It has also ordered a response in Sharp, which is currently due on December 30, 2015. The Court may therefore wish to hold this petition until it acts on the petition for a writ of mandamus filed in Triplett or any of the petitions for a writ of habeas corpus.  

Perhaps this passage is meant to suggest that the government will not oppose extraordinary relief--whether through mandamus in Triplett or habeas in Butler, Sharp, and/or Triplett--as a way for the Justices to settle the Johnson retroactivity question. If so, then the Supreme Court may well be on the verge of doing something it hasn't done in decades (and of settling a messy, messy circuit split in the process).