Something is a little rotten in the Fifth Circuit.  The court has recently refused to hold or to stay cases pending a decision from the Supreme Court in Sessions v. Dimaya.

Dimaya presents the question whether 18 U.S.C. § 16(b) is unconstitutionally vague, as incorporated into an immigration law provision that governs whether a non-citizen is removable from the United States.  Section 16(b) defines a crime of violence as “any ... offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Dimaya was originally argued last term before an eight-member Supreme Court.  But at the end of the 2016 term, the Court kicked the case to re-argument in this term.  That decision suggested the 8-member Court was unable to reach a disposition in the case, likely because the justices were evenly divided 4-4 as to whether section 16(b), at least as incorporated into immigration law, is unconstitutionally vague.

That means Justice Gorsuch will be the deciding vote.  And after a stellar set of briefs and (another) stellar argument from the respondent Dimaya (represented by lawyers at Orrick, including Josh Rosenkranz and Brian Goldman), it looks like Dimaya is going to prevail.

But section 16(b) is incorporated into a host of other provisions aside from immigration law—provisions of the Sentencing Guidelines (which unfortunately can’t be vague after Beckles v. United States), as well as criminal statutes (which certainly can be vague, as numerous decisions make clear).  One of the provisions incorporating section 16(b) is the criminal statute establishing penalties for non-citizens re-entering the United States after they have been removed.  In particular, 8 U.S.C. § 1326 establishes that the usual penalty for unlawful re-entry is not more than 2 years imprisonment.  But the statute increases the maximum penalty to 20 years’ imprisonment for noncitizens who were convicted of an “aggravated felony” — and an “aggravated felony” is defined to include “a crime of violence” under section 16(b).

Thus, if the Supreme Court holds that section 16(b) is unconstitutionally vague, persons sentenced under section 1326 based on a prior conviction for an aggravated felony will also have a claim that they had their sentences enhanced on the basis of an unconstitutionally vague provision.  Johnson v. United States (a.k.a. one of Justice Scalia’s greatest hits) held that statutory sentencing enhancements can be unconstitutionally vague.  And so people who have been sentenced under provisions that would be unconstitutionally vague if Dimaya ultimately holds section 16(b) unconstitutionally vague are asking courts to hold or stay their cases pending the outcome of Dimaya.  (It’s fairly routine for litigants to ask that cases be held pending the outcome of a relevant Supreme Court case.)

There are several reasons why it would make sense to hold the cases for the outcome in Dimaya, given that Dimaya will resolve the claims in them.  It avoids having to re-adjudicate the cases unnecessarily.  And there’s pretty good evidence the Court may invalidate section 16(b) — never a shrinking violet, Justice Gorsuch gave strong indications at argument that he is inclined to find section 16(b) vague.  So rejecting the argument that section 16(b), as incorporated into criminal law, is unconstitutionally vague, as the Fifth Circuit has done, runs a particularly high risk of unnecessary and duplicative adjudications.  It’s a waste of everybody’s time and resources.

But there’s an even deeper problem with courts refusing to stay cases pending the outcome in Dimaya.  Some of the cases in which a prisoner was convicted or sentenced under an unconstitutionally vague provision (if Dimaya holds section 16(b) unconstitutionally vague) may get lost in the fray because of the realities of indigent defense and the restrictions on post-conviction review.  These prisoners may never receive a remedy for their unlawful convictions and sentences.

The resource-starved status of indigent defense is fairly well known. We won’t elaborate on it besides noting that public defenders (even federal public defenders) have a lot of cases and a lot of clients.  So generating more litigation for them — unnecessarily — seems more problematic than just generating more litigation, period.  Moreover, defendants, to date, don’t have a constitutional right to counsel after their initial appeal.  Thus, if a court of appeals has rejected a prisoner’s appeal, there’s no guarantee that the prisoner will have a lawyer at any point thereafter to ensure that the prisoner raises the claim that he was sentenced under an unconstitutionally vague statute.

Sure, the Supreme Court might vacate all of the court of appeals opinions that mistakenly rejected Dimaya claims and send them back in light of Dimaya.  But are we confident the Court (and the law clerks) will identify every single case where there’s a Dimaya claim that a prisoner fails to raise?  And after the Supreme Court denies certiorari over a prisoner’s appeal, are we confident that the prisoner would raise that claim in his first motion for resentencing under section 2255, or a successive motion if he’s already filed one?  Are we confident that the resource-strapped public defender offices could identify every single case where a prisoner had a potential Dimaya claim and pursue resentencing motions under section 2255?  These are big asks, and the risks of a mistake are big, too: prisoners could end up serving decades more than they should.

Even if courts and lawyers were able to identify every single case in which a prisoner had a Dimaya claim, courts of appeals, by refusing to stay these cases, are running the risk that a prisoner could be foreclosed from obtaining a remedy if the prisoner’s case proceeds too far.   There are several draconian limits on remedies that a prisoner can obtain after the prisoner’s conviction becomes “final,” meaning after the prisoner’s time to file a petition for certiorari in the Supreme Court has expired, or the Supreme Court has denied a petition for certiorari.

Specifically, if the prisoner is pursuing his first motion for resentencing under section 2255, the prisoner has one year from “the date on which the right was initially recognized by the Supreme Court” to raise the claim.  The time period puts additional pressure on courts and public defenders to identify everybody with a potential Dimaya claim within one year after Dimaya.  Again, it may be possible.  But it’s a risk.

Prisoners who may be attempting to file a second or successive motion for resentencing under section 2255 face even bigger obstacles.  There are three:

One is that section 2255(h) only allows a prisoner to file a second or successive motion under two circumstances.  The one relevant here would be if the motion relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”  Dimaya would certainly be a new rule of constitutional law.

It would also be a new rule that is and should be retroactive to cases on collateral review (i.e., a rule that applies to cases that have become final).  In Welch v. United States, the Court held retroactively applicable the rule announced in Johnson that invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague.  In general, a rule is retroactive if it’s substantive, and the Court held the rule invalidating ACCA’s residual clause substantive.  The reasoning the Court applied in Welch appears applicable to  section 16(b) where it appears in criminal statutes:  Invalidating section 16(b), like invalidating ACCA’s residual clause, would “change[] the substantive reach” of whatever statute the defendant was sentenced under.  And invalidating section 16(b), like invalidating ACCA’s residual clause, would have the effect of “altering the range of conduct or the class of persons that the [Act] punishes.”  And invalidating section 16(b), like invalidating ACCA’s residual clause, would mean “that even the use of impeccable factfinding procedures could not legitimate a sentence based on that clause.”

There are, however, some differences between invalidating section 16(b) versus invalidating ACCA’s residual clause.  ACCA altered defendants’ statutory maximum and minimum sentences, as the Court noted in Welch:  Without ACCA, felons convicted of unlawful possession of a firearm are subject to at most ten years in prison; with ACCA, they are subject to at least 15. But section 16(b) would not, in every single provision in which it is incorporated, alter defendants’ statutory maximum and minimum sentences.  For example, in the Fifth Circuit case linked to above (Ontiveros-Cedillo), there is no new statutory minimum sentence for defendants with a conviction for an aggravated felony. (It’s still zero.)  There’s just a new statutory maximum sentence — 20 versus 2 years.  Persons sentenced to more than 2 years’ imprisonment would be in the same position that persons sentenced under ACCA were in:  They would be serving more time than the statutory maximum for their offense.  Persons sentenced to 2 years or less wouldn’t be, though their sentence may still have been lengthened because of the section 16(b) enhancement.  But it’s not clear that that should matter given the Court’s reasoning in Welch, and regardless of how much time a person was sentenced to serve, the statutory basis for the prisoner’s sentence would still be partly invalidated.

The rub is that it’s not enough that a rule invalidating section 16(b), as incorporated into criminal sentencing statutes, is and should be retroactive.  Section 2255(h) requires the Supreme Court to have “made” that rule retroactive to cases on collateral review.  And in Tyler v. Cain, the Court came pretty darn close to saying that the Court “makes” a rule retroactive only by applying the rule to a case on collateral review.  So, in order for a prisoner to file a valid successive motion under section 2255, the Court would not only have to announce the new rule (as it seems poised to do in Dimaya).  It would also have to explicitly make (i.e., hold) that rule retroactive in a case on collateral review.

Oh, and it would also have to do so within one year of announcing the rule in Dimaya, since in Dodd v. United States (one of the worse post-conviction cases, and that’s saying something), the Court held that the one-year statute of limitations, when applied to successive 2255 motions, runs from the date on which the Court recognizes the new right, not from the date it makes the rule retroactive.

Now, in the wake of Johnson, some courts of appeals interpreted Tyler to mean that the Supreme Court has made all “substantive” rules retroactive.  Therefore, if a rule is substantive, the Court has made it retroactive.  That’s clever and also a plausible reading of the Court’s opinion in Tyler, or at least Justice O’Connor’s concurrence in Tyler, and her vote was necessary to the result in that case.  But as Leah explains in her forthcoming Virginia Law Review paper (which she’ll post soon), it won’t always be clear that the Court has “made” a rule substantive.  In Welch, the Court held—and thus made—the rule invalidating ACCA’s residual clause substantive and thus retroactive.  A rule invalidating section 16(b) is and should be substantive, as we explain above.  But a rule invalidating section 16(b) is a little bit different than a rule invalidating ACCA, as we also explained above.  Has the Supreme Court held that a rule invalidating a provision that alters a defendant’s statutory maximum sentence but not minimum sentence is substantive, and thus retroactive?

It’s not clear.  And the risk that a court of appeals could be foreclosing any remedy for a prisoner who has received a sentence that exceeds the lawful statutory maximum for his offense should give the court pause before pushing the prisoner’s case farther along — potentially into the stage where the prisoner would be forced to file a successive motion under section 2255, and be caught in this Kafkaesque post-conviction maze.

We said there were three risks.  The additional ones are:

Two, assuming that a prisoner can’t file a successive motion under section 2255(h), it’s also not clear whether a prisoner could have his sentence corrected by filing a habeas petition under the so-called “savings clause” of section 2255.  The savings clause allows prisoners to file a habeas petition if “the remedy by motion” under section 2255 “is inadequate or ineffective to test the legality of his detention.”  The Department of Justice used to adopt the position that certain prisoners whose sentences exceeded the lawful statutory maximum for their sentence could have their sentences corrected under the savings clause.  It recently changed its position.  The Tenth Circuit (in an opinion by then-Judge Gorsuch), and recently the Eleventh Circuit (in an opinion by Judge Pryor) adopted the more draconian position that a prisoner can only have his sentence corrected under the savings clause if the court that sentenced the prisoner no longer exists.  Thus, there’s no backstop in some circuits for prisoners to have their sentences corrected if they can’t file under section 2255.  (You can read more about DOJ’s views and the Tenth Circuit decision here and here.)

Three, section 2244 provides that “a claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.”  Section 2254 is the provision governing post-conviction relief for state prisoners; section 2255 is the provision governing post-conviction review for federal prisoners.  But in one of many wild Eleventh Circuit cases decided in the wake of Johnson, the Eleventh Circuit held that section 2244 provision applies to federal prisoners seeking to obtain resentencing under section 2255.  (You can read more about those decisions here.)

Under that interpretation, a prisoner who argued that section 16(b) is unconstitutionally vague in a previous motion for resentencing under section 2255 would have his claim dismissed by  court of appeals because it was previously raised and previously rejected —even if incorrectly.    A prisoner cannot simply refile claims that were rejected prior to Dimaya.  The Eleventh Circuit has also stated that it would consider those claims if the Supreme Court announced a new rule of constitutional law in a subsequent decision.  But a rule requiring courts to dismiss claims that were previously presented is forcing prisoners and their lawyers to refile subsequent motions after Dimaya.  And that raises the odds that some of these cases will get lost in the fray.

So, free advice to the courts of appeals:  Hold cases for Dimaya.  It’s the right thing to do.

@LeahLitman

@lark

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