The Supreme Court yesterday granted certiorari in Welch v. United States, presenting the question of whether last Term’s decision in Johnson v. United States is retroactive to cases on collateral review. Johnson, after reargument and fresh briefing by the parties, held that the residual clause of the Armed Career Criminal Act (ACCA) is so vague as to violate the Due Process Clause of the Fifth Amendment.
The residual clause imposed a mandatory minimum sentence of 15 years where a person has been convicted of a gun possession offense under 18 U.S.C. 922(g) and who also has three previous convictions for a serious drug offense or violent felony, defined in the clause as an offense punishable by imprisonment for more than one year and that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. 924(e)(2)(B). This led to a slew of petitions for relief from sentences imposed under ACCA’s residual clause. But, pursuant to Teague v. Lane, federal courts will not grant relief on collateral review based on a new rule, unless that rule is substantive or, if procedural, is a watershed rule of procedure. So if a person convicted and sentenced under the residual clause of ACCA wants relief from his or her sentence on collateral review based on Johnson, that can only happen if Johnson applies retroactively. That is the question that Welch will answer. To complicate matters, the Justice Department has conceded Johnson retroactivity in another case, so the Court will have to appoint a lawyer to argue that Johnson is not retroactive.
Notably, this is the second major retroactivity case the Court will hear this Term. The other is Montgomery v. Louisiana, which involves the retroactivity of the Court’s decision in Miller v. Alabama. Miller held that the Eighth Amendment forbids mandatory imposition of life without parole sentences on juvenile homicide defendants, though LWOP sentences based on judicial discretion are constitutionally permissible.