The (In)Significance Of Orders Authorizing Successive Petitions
On Friday, the Supreme Court will consider several petitions regarding the retroactivity of Johnson v. United States, the decision holding the Armed Career Criminal Act’s residual clause unconstitutionally vague. These petitions are seeking to have the Supreme Court “make” Johnson retroactive so that prisoners with Johnson claims can file successive petitions for post-conviction review. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), prisoners who have already filed one petition for post-conviction review must obtain authorization from the court of appeals to file a successive petition. And to obtain authorization, prisoners must show that the Supreme Court has “made” Johnson retroactive.
Several courts of appeals—the First, Second, Sixth, Seventh, Eighth, and Ninth Circuits—have granted prisoners authorization to file successive petitions based on Johnson. Three courts of appeals—the Fifth, Tenth, and Eleventh—have denied prisoners authorization to file successive petitions.
Thus far, the arguments for why the Supreme Court should “make” Johnson retroactive have focused on the three circuits where prisoners are being denied permission to file successive petitions. That makes some sense. In these circuits, after all, prisoners may not file a successive petition for post-conviction review even though they have meritorious Johnson claims. The prisoners were sentenced to a 15-year term of imprisonment when the lawful statutory maximum term of imprisonment for their offense was 10 years.
But the focus on the courts of appeals that have denied prisoners authorization to file successive petitions is a mistake. Prisoners who have received authorization to file successive petitions also may not be able to obtain relief if the Supreme Court does not take one of the petitions seeking to “make” Johnson retroactive. The reason is this: When courts of appeals grant authorization to file successive petitions, they determine only if the prisoner has made a “prima facie” showing that the prisoner is entitled to file a successive petition. The district courts and courts of appeals that will adjudicate the successive petition on the merits will make that determination anew—that is, they will consider, for themselves, whether the prisoner has satisfied the requirements to file a successive petition, including that the Supreme Court has “made” Johnson retroactive. The courts of appeals opinions granting prisoners authorize to file successive petitions don’t require district courts or the court of appeals—in the same circuit—to say that the Supreme Court has “made” Johnson retroactive. And district courts and subsequent courts of appeals may conclude, based on full briefing and with more time, that the Supreme Court has not “made” Johnson retroactive. Therefore, unless the Supreme Court explicitly makes Johnson retroactive, prisoners in these circuits also may not be able to have their sentences reduced to their lawful 10, rather than 15 years.
Judge Colloton specifically mentioned this possibility in an opinion for the Eighth Circuit granting a prisoner authorization to file a successive petition for post-conviction review based on Johnson. Menteer v. United States, 806 F.3d 1156 (8th Cir. 2015). And it is a very real possibility. Section 2255 provides that “a second or successive motion must be certified as provided in section 2244 … to contain … a new rule of constitutional law, made retroactive by the Supreme Court.” Section 2244, in turn, provides that a court of appeals “may authorize the filing … if it determines that the application makes a prima facie showing” of the requirements to file a successive petition.
The “prima facie” requirement is important because it means that the courts of appeals opinions that grant prisoners authorization to file successive petitions aren’t actually determinative, in these circuits, of whether the Supreme Court has “made” Johnson retroactive. Rather, the opinions determined only whether “it appears reasonably likely that the petition satisfies” the requirements for a successive petition, or whether there is “a sufficient showing of possible merit.” After a prisoner receives authorization to file a successive petition, the district court (and later the court of appeals) will fully adjudicate the petition on the merits. And, in the course of adjudicating the petitions on the merits, these courts will decide for themselves whether the Supreme Court has made Johnson retroactive. (Section 2244(b)(4) even directs district courts to “dismiss any claim … that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.”) Several courts of appeals—including the Seventh, Eighth, and Ninth Circuits—have held that district courts, and the courts of appeals that later review the district court decisions, must decide de novo whether a prisoner has satisfied the requirements to file a successive petition. One reason for this is that courts of appeals must grant or deny authorization to file a successive petition under an extremely expedited timetable—they have only 30 days to do so.
There are several examples of cases where the court of appeals initially granted prisoners authorization to file successive petitions, but the district court and court of appeals subsequently determined that the petitions did not satisfy the requirements for filing a successive petition. E.g., Case v. Hatch, 731 F.3d 1015 (10th Cir. 2013); Villa-Gonzalez, 208 F.3d 1160; Jordan v. Secretary, Dep’t of Corrections, 485 F.3d 1351 (11th Cir. 2007). Additionally, several of the courts of appeals opinions granting prisoners authorization to file successive petitions based on Johnson have cautioned that the opinions made only a prima facie determination that the petitions satisfied the requirements for a successive petition. (These include the First, Second, Seventh, and Eighth circuits. Judge Colloton's opinion for the Eighth Circuit almost encouraged district courts to find that Johnson has not been made retroactive: The opinion "emphasize[d] ... that after the motion is filed, the district court 'must not defer' to this court's 'preliminary determination' in granting authorization.")
Leah has previously outlined the many reasons why the Court should take one of the petitions about Johnson retroactivity. The possibility that prisoners who have already received authorization to file a successive petition may not be able to vindicate their Johnson claims is yet another reason to do so.
This piece was co-authored by Luke Beasley.