//  5/22/18  //  Commentary

In Sessions v. Dimaya, the Supreme Court held unconstitutional the federal definition of “crime of violence.” Dimaya is going to launch a wave of resentencings, and processing those resentencings will likely occupy the federal courts for some time, as prisoners who are convicted of statutes incorporating the federal definition of crime of violence (or other definitions like it) seek to have their convictions or sentences revisited. (The Tenth Circuit has already held section 924(c)(3)(B) is unconstitutionally void for vagueness in light of Dimaya; the Eleventh Circuit is about to hear a case presenting that question en banc; and the Supreme Court sent a bunch of cases back to the courts of appeals in light of Dimaya.)

As those familiar with federal post-conviction review know, federal prisoners will encounter a host of procedural obstacles as they seek to correct their unlawful convictions and sentences. Among the obstacles are the doctrine of procedural default (which generally prohibits prisoners from raising a claim they could have previously raised in their direct appeal); the doctrine of retroactivity (which generally prohibits prisoners from relying on new constitutional rules of criminal procedure announced after a prisoner’s conviction has become final); and the statute of limitations (which restarts on the date the Court recognizes a new right that is retroactive). But these and other procedural limits on federal post-conviction review have exceptions. In a paper recently published with the Virginia Law Review, Legal Innocence and Federal Habeas, I argue that many federal prisoners affected by Dimaya fall within those exceptions.

In the article, I show how habeas doctrine and scholarship have long fixated on so-called “innocent” defendants. A famous article by Judge Henry Friendly proposed that habeas should be available to defendants who are innocent, and the Court has shaped several doctrines along those lines—excusing “innocent” defendants from a variety of procedural restrictions on post-conviction review.  In Legal Innocence and Federal Habeas, I argue that defendants who were convicted of something that wasn’t a crime, or sentenced under a provision that doesn’t apply to them are also innocent (at least for purposes of the existing procedural restrictions on federal post-conviction review that have exceptions for cases of innocence). That is, defendants can be innocent both where new facts reveal the defendant didn’t commit the crime of conviction, or where a subsequent decision of statutory interpretation reveals the defendant didn’t commit the crime of conviction. I also argue the same is true for sentencing errors, including in non-capital cases, and in cases where the defendant was convicted or sentenced under an unconstitutional statute, which will be the case for many prisoners affected by Dimaya. You can read the article here; I also wrote a short Harvard Law Review blog post about the same here.

@LeahLitman


Korematsu And The Entry Ban (Again)

2/4/19  //  In-Depth Analysis

Recently revealed errors in the report that the administration created pursuant to the second entry ban further underscore the parallels between Korematsu v. United States and the entry ban.

Leah Litman

U.C. Irvine School of Law

Getting To No On Roe: It Continues

1/29/19  //  In-Depth Analysis

Another recent decision from a court of appeals (this time the Fifth Circuit) illustrates how states and courts can undermine women’s right to decide to end their pregnancies without formally overruling the relevant Supreme Court decisions.

Leah Litman

U.C. Irvine School of Law

Revisiting The Presumption of Regularity

1/28/19  //  Commentary

Subsequent events have made clear that courts were--and are--right to recognize that all is not regular in the executive branch.

Leah Litman

U.C. Irvine School of Law