//  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


The Mandatory Guidelines Predicament in the Sixth Circuit

4/11/19  //  Commentary

A recently filed amicus brief asks the Sixth Circuit to reconsider en banc whether prisoners challenged under the mandatory Guidelines can ever air the claim that their sentences are unconstitutional in light of Johnson v. United States.

Leah Litman

U.C. Irvine School of Law

The Two Sides of Donald Trump in The @RealDonaldTrump Litigation

3/25/19  //  Commentary

The government’s brief is at war with itself with respect to the state action and government speech doctrines in the @realdonaldtrump litigation.

Kyle Skinner

Harvard Law School

Leah Litman

U.C. Irvine School of Law

Two Cheers for the Non-Unitary Executive?

3/18/19  //  Quick Reactions

Current events provide an occasion for the Court to rethink its agreement with the unitary executive theory. In fact, it’s already done so.

Leah Litman

U.C. Irvine School of Law