Supreme Court decides Welch, makes Johnson retroactive

Gregory Welch pleaded guilty in 2010 to being a felon in possession of a firearm.  He had three prior convictions, including one for “strong arm” robbery in Florida.  The lower federal courts therefore held that he was appropriately punished under the Armed Career Criminal Act’s residual clause, which creates a mandatory minimum sentence of 15 years for a person who commits a federal gun possession offense and has three prior convictions for a violent felony.  For purposes of this case, a violent felony is one involving conduct that “presents a serious potential risk of physical injury to another.”  18 U.S.C. 924(e)(2)(b)(ii).  Welch received the mandatory minimum, despite his claim that his robbery conviction did not qualify as a violent felony.  Last year, however, the Supreme Court in Johnson v. United States that the residual clause of the ACCA is unconstitutionally vague, in violation of the Fifth Amendment’s Due Process Clause.

Welch, whose case was on collateral review pursuant to a motion brought under 28 U.S.C. 2255, sought relief from his sentence under Johnson.  But, in 1989, Teague v. Lane held that new rules are not retroactive to cases on collateral review in federal court, unless they are either substantive rules or “watershed” rules that bear on the accuracy and reliability of the trial.  So, is Johnson retroactive to cases on collateral review?

To the surprise of no one who follows such things, the Supreme Court today held in Welch v. United States that Johnson is fully retroactive.  The Court, in a 7-1 opinion by Justice Kennedy, found that Johnson announced a substantive rule, and therefore satisfied the first exception to the Teague doctrine.    For the second time this Term, the Court has held that a proposed rule was a substantive rule and thus outside of the Teague bar.  See Montgomery v. Louisiana (holding that Miller v. Alabama announced a substantive rule and applies to cases on collateral review).

Justice Thomas was the lone dissenter in Welch.  Interestingly, Justice Thomas noted that Welch never raised an ACCA-vagueness claim in the district court on his 2255 motion, and therefore should be barred from obtaining a certificate of appealability (which is the only way the Eleventh Circuit could consider his claim on the merits).  The Government (which was on Welch’s side here; the argument against retroactivity was made by Court-appointed amicus) seems to concede the procedural default, but also claims to waive any objection to it here.  Justice Thomas appears to have the better of the procedural argument under the relevant habeas statutes.  But it probably would not matter to the retroactivity question in the long run, because the Court could simply take yet another of the many 2255 cases invoking Johnson and decide the issue in a case where the issue was properly before the lower court on a 2255 motion.  On the merits, though, Justice Thomas argued that the rule from Johnson was procedural, not substantive, and thus was Teague-barred.  His dissent focused primarily upon the values of finality that helped build the Teague doctrine and that counsel against broadening habeas relief.

I am sympathetic to Justice Thomas’s concerns about how the Court “keeps moving the goalposts” with respect to Teague.  It is true that 2016 has thus far been a tough year for the Teague bar.  But the Court’s pre-2016 Teague case law will still govern the vast majority of claims on federal habeas, and that case law overwhelmingly favors the government.  He argues that the Court “swiftly discarded” the limitations under Teague.  But that is perhaps an overstatement.  The cases he cites – Penry, Montgomery, and Bousley – surely extended Teague in (in my view) regrettable ways, but those cases are probably best viewed as outliers in the Teague area.  Still, Montgomery and Welch have the potential to work changes in the way that lower federal courts view the substantive/procedural distinction, and that will be worth watching.  In other words, at this point, Teague is hardly dead, but a more liberal approach to retroactivity seems to be emerging on the Court.

Doug Berman has his reaction over at SL&P.

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