6th Circuit Holds Johnson to be Retroactive – News for the Week of January 4, 2016


This week:

6th Circuit Rules Johnson is Retroactive

11th Circuit Chips Away at ACCA and Career Offender

Judge Finds U.S. Attorney’s Explanation ‘Glib” And “Disappointing”

Reading The Fine Print – § 2255 Motion Time Barred Because of Filing Error

Call For Obama To “Go Big” On Pardons

Congressional Action On Sentence Reform – First We Have to Get ‘Em Back to Work



Windy Watkins is not your usual armed career criminal. But in 2005, she pled guilty to being a felon in possession. She had three qualifying priors under the Armed Career Criminal Act, giving her a mandatory 15-year sentence.

johnsonretro160103In 2011, Windy filed a § 2255 motion, which – if you read the Daniels decision below – you know was filed years too late. The district court denied the motion as untimely. In 2014, she filed a second 2255 motion, arguing that in light of Descamps v. United States, her felony escape conviction did not qualify as an ACCA predicate offense. The district court transferred the motion to the 6th Circuit Court of Appeals for consideration whether authorization of a second or successive 2255 motion was warranted under § 2255(h). The motion was pending when Johnson v. United States was decided last June, and Windy promptly amended her request to base her new 2255 motion on Johnson.

Last week, the Court of Appeals blew life into Windy’s 2255 motion. Determining that Johnson announced “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” the appellate court granted Windy the right to proceed with a second 2255 motion.

The 6th Circuit held that the rule announced by Johnson is new “because, in reaching its holding that ACCA‘s residual clause is void for vagueness, the Supreme Court explicitly overruled its earlier rulings to the contrary.” The Johnson rule was previously unavailable to Watkins, because until June 2015 it was prohibited “rather than dictated, by existing Supreme Court precedent.” Finally, Johnson’s rule is derived from the Fifth Amendment prohibition against the enforcement of a criminal law that is “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or … invites arbitrary enforcement.”

Because Johnson announced a substantive rule that prohibits the hanging of ACCAs 15-year mandatory minimum sentence on defendants whose status depends on the unconstitutionally vague residual clause, the Court of Appeals concluded that Johnson’s rule is categorically retroactive to cases on collateral review.

This is good news for people with ACCA and career offender convictions.

In re Watkins, Case No. 15-5038 (6th Cir. Dec. 17, 2015)



Third-degree burglary - it's still wrong, but it's no longer an ACCA predicate.
      Third-degree burglary – it’s still wrong, but it’s no longer an ACCA predicate.

The 11th Circuit had already declared Alabama’s third-degree burglary statute to be indivisible under Descamps v. United States, and not to be counted as a predicate for an Armed Career Criminal Act or a Guidelines Chapter 4 career offender sentence. United States v. Howard, 742 F.3d 1334 (11th Cir. 2014). Now, the Circuit has driven a stake of holly into the burglary statute’s heart, ruling last week that it is not a crime of violence, either.

Jeremy Nelson and Ted Snow were felons in possession who both got ACCA sentences because they had prior convictions under Alabama Code § 13A-7-7(a) for third-degree burglary. They argued that the burglary convictions were not violent felonies under the ACCA after the Supreme Court’s decision in Johnson v. United States.

In a decision issued last week, the 11th Circuit agreed. The Court said the “Alabama statute of conviction criminalizes ‘knowingly enter[ing] or remain[ing] unlawfully in a building with intent to commit a crime therein’.” Thus, the crime does not “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another.” Even if it did, the Court said, Johnson declared the ACCA’s residual clause to be unconstitutionally vague. “Without the residual clause of the ACCA, there is no longer any basis for characterizing the Alabama third degree burglary statute as a violent felony under the ACCA.”

United States v. Nelson, Case No. 13-11537 (11th Cir. Dec. 30, 2015)



A month ago, we reported on a judge in the U.S. District Court for the Eastern District of New York had caught the Government including warnings in grand jury that improperly demanded secrecy from their recipients. In a second case in the District, another judge last week refused to grant a defense motion suppressing the fruits of the subpoenas, but cautioned prosecutors he wouldn’t rule out suppression if they issued other wrongly worded subpoenas in the future.

“Now that the government is unambiguously on notice of this problem and the need to correct it, continued violations could well warrant severe remedies,” Eastern District Judge Raymond Dearie wrote in United States v. Gigliotti, Case No. 15-cr-204.

The AUSA prevaricate? Perish the thought!
      The AUSA prevaricate? Perish the thought!

The Judge told prosecutors to report to him on “how extensively this or similar language has been used in grand jury subpoenas by the United States Attorney’s Office.” In the government’s reply, Assistant U.S. Attorney James Miskiewicz said the language had been mistakenly included in a few of the subpoenas because he had missed the language when the subpoenas were being finalized by his staff.

Judge Dearie’s suppression ruling called these explanations about the subpoenas “curious” and “disappointing.” The judge said he was “bemused by the government’s rather glib explanation that the violations were simply ‘inadvertent and unintentional.'”



Like about 6,500 federal prisoners last year, Roscoemanuel Daniels filed a motion to vacate his sentence under 28 U.S.C. § 2255. But unlike almost all of his fellow filers, he didn’t pay a lot of attention to the deadlines for filing set out in § 2255(f)(1). The district court found that because Daniels’ conviction had become final on March 23, 2012, but he didn’t file until September 4, 2013, his Sec. 2255 motion was time-barred. Daniels appealed.

Let's be on time, people!
                    Let’s be on time, people!

Under 2255(f)(1)’s statute of limitations, a prisoner must ordinarily file his § 2255 motion within one year of the date on which his judgment of conviction becomes final. Under the prison mailbox rule, a pro se prisoner’s court filing is deemed filed on the date it is put in legal mail at the prison. The court assumes, “absent evidence to the contrary … that a prisoner delivered a filing to prison authorities on the date that he signed it.”

Daniels’ § 2255 motion was signed and dated September 4, 2013, which – absent evidence to the contrary – pretty much settled the issue, and did so in a way that wasn’t helpful to Daniels. But Daniels maintained that the filing was timely under the prison mailbox rule, because he originally delivered his § 2255 motion to prison authorities for mailing on an earlier date. In the district court, he submitted an affidavit that said, “On March 13, 2013, I placed my motion for relief under § 2255, in the prison mailbox.”

The Court noted that Rule 3(d) of the Rules Governing Section 2255 Proceedings lets a prisoner show that his motion was timely by making the type of declaration Daniels made. However, Rule 3(d) requires not only that a prisoner’s declaration “set forth the date of deposit,” but also mandates that he “state that first-class postage has been prepaid.” Daniels’ affidavit set forth the date he said he deposited the motion in the mail, but it did not state that first-class postage had been prepaid.

The Court of Appeals was not sympathetic. It said “Rule 3(d) has only two requirements with respect to the content of the prisoner’s declaration. To demand anything other than strict compliance with those requirements would render them nullities. Because Daniels did not satisfy the requirements of Rule 3(d), he cannot avail himself of the prison mailbox rule and the district court did not err in dismissing his § 2255 motion as time-barred.” In other words, Rule 3(d) only required that Daniels do two simple things, and he messed one of them up.

The lessons here? Be on time. Read and follow the rules. Tell the truth. It’s not that hard – but it’s that critical.

Daniels v. United States, Case No. 14-14363 (11th Cir. Dec. 30, 2015)



gobigor160103Jeffrey Toobin, a legal writer and CNN analyst, wrote in the Dec. 22, 2015, New Yorker magazine that 2016 is the year that Obama should “go big” on pardons. He argued that Obama’s deeds should match his rhetoric:

“Obama should be considering action on a vast scale. When it comes to mass incarceration, he has been content so far to work around the fringes. He has asked Congress to consider reducing sentences for certain crimes. He has told Attorney General Loretta Lynch to restrict the use of solitary confinement in federal prisons. These are worthy, modest goals. But the pardon power, with its roots in the monarchy, allows a President to go big – and that’s exactly how Obama should go.”

Toobin suggested that Obama publish the names of people being considered for pardons. This way, “members of the public can make their views known about the wisdom … of letting each individual out of prison.” Additionally, “this process could allow the President to end or reduce the sentences of many more prisoners than he has done so far. Obama could make the case for pardons or commutations on an individual-by-individual basis, or he could establish a broader rule — that, say, every nonviolent drug offender with just a single conviction, or possession of a certain quantity of drugs, would be eligible.”



The Senate resumes work after the holidays on Monday, January 4, 2016. The House reconvenes the next dayCongress160103

Neither chamber has yet scheduled the Sentencing Reform and Corrections Act for floor action. The National Law Journal reported on December 28, 2015, that “Mark Holden, Koch Industries’ general counsel, predicted the bill will get a ‘floor vote by late January, early February,’ and will move on to the president’s desk soon after.”   Koch Industries has joined with other organizations across the political spectrum to push for the bills’ passage.

We’ll report every week on the status of legislation, whether it’s moving forward or just standing still.


Legal Information Services Associates provides research and drafting services to lawyers and inmates. With over 20 years experience in post-conviction motions and sentence modification strategy, we provide services on everything from direct appeals to habeas corpus to sentence reduction motions to halfway house and home confinement placement. 

If you have a question, contact us using our handy contact page. We don’t charge for initial consultation. 

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