Lester v. United States

921 F.3d 1306 (Mem)

Stoney LESTER, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 18-10523

United States Court of Appeals, Eleventh Circuit.

April 29, 2019

Bradley N. Garcia, Jonathan D. Hacker, O'Melveny & Myers, LLP, WASHINGTON, DC, Burleigh Lavisky Singleton, Kilpatrick Townsend & Stockton, LLP, ATLANTA, GA, for Petitioner - Appellant.

Michael A. Rotker, U.S. Department of Justice, Criminal Division, Appellate Section, WASHINGTON, DC, Michelle Lee Schieber, U.S. Attorney Service - Middle District of Georgia, U.S. Attorney's Office, MACON, GA, for Respondent - Appellee.

Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, and GRANT, Circuit Judges.

BY THE COURT:

A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

WILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc:

A majority of the Court has voted not to rehear this appeal en banc to reconsider whether a subset of federal prisoners classified as career offenders under the United States Sentencing Guidelines can seek resentencing on collateral review based on the void-for-vagueness doctrine explicated in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which invalidated the residual clause of the Armed Career Criminal Act. As background, we held in United States v. Matchett , 802 F.3d 1185 (11th Cir. 2015), and the Supreme Court later confirmed in Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), that prisoners who were sentenced as career offenders after the Supreme Court’s decision in United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), cannot benefit from Johnson because—at least after Booker —the void-for-vagueness doctrine does not apply to the Sentencing Guidelines. But neither Matchett nor Beckles resolved whether those sentenced as career offenders before Booker can collaterally attack their sentences.

Our published order In re Griffin , 823 F.3d 1350 (11th Cir. 2016), answered that question in the negative for two independent reasons. First, Griffin applied the reasoning of Matchett to hold that the Guidelines are not susceptible to void-for-vagueness challenges no matter whether a prisoner was sentenced before or after Booker . See id. at 1354–55. Second, although the Supreme Court has held that the new legal rule of Johnson applies retroactively to cases on collateral review because it is "substantive," see Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), Griffin held that an analogous new rule applying the void-for-vagueness doctrine to pre- Booker career-offender sentences under the Guidelines would be not be substantive and, as a result, could not be applied retroactively. See 823 F.3d at 1355–56.

Griffin and Matchett speak for themselves as to the first holding, but I write in response to Judge Martin’s statement respecting the denial of rehearing en banc to explain that Griffin ’s second holding must be correct. In brief, Johnson was a substantive decision that entitled prisoners sentenced under the residual clause of the Armed Career Criminal Act to relief because it made clear that the law had never authorized their convictions and sentences. By contrast, a new rule extending Johnson to set aside pre- Booker career-offender sentences—all of which fall within the substantive statutory ranges prescribed by Congress—would require only the procedural formality of a resentencing in which the district court would have the power to impose exactly the same sentence as before. Such a rule, as we concluded in Griffin , would not be substantive. See id. at 1355–56. To my mind, this nutshell summary of Griffin ’s second holding says all that needs to be said. But, because some of my colleagues see the matter differently, this statement explains at greater length why a new rule extending Johnson ’s void-for-vagueness holding to invalidate pre- Booker career-offender sentences would not be substantive.

I divide my discussion in three parts. First, I explain that the rationale underlying the retroactivity of substantive rules is that courts lack the authority to enter a judgment of conviction or impose a sentence the substance of which the law does not authorize, and I explain that the new rule that Judge Martin’s statement advocates would not be substantive in this sense because the sentences it would invalidate were imposed within the statutory ranges established by Congress. Second, I explain that Judge Martin’s counterargument cannot be squared with Booker . Third, I respond briefly to Judge Rosenbaum’s statement.

A. The Retroactivity of Substantive Rules.

In Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court "adopt[ed] [the] approach to retroactivity for cases on collateral review" that the second Justice Harlan had developed in two influential opinions. Id. at 292, 109 S.Ct. 1060 ; Mackey v. United States , 401 U.S. 667, 675–702, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in the judgment); Desist v. United States , 394 U.S. 244, 256–69, 89 S.Ct. 1048, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting). Under this familiar framework, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague , 489 U.S. at 310, 109 S.Ct. 1060 (O’Connor, J., plurality opinion). Although the Court has maintained that there exists an exception for "a small set of ‘watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding,’ " it has also stressed that this exception is "extremely narrow," and it has never held that any rule falls within the exception. Schriro v. Summerlin , 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (some internal quotation marks omitted) (quoting Saffle v. Parks , 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) ).

In contrast to new procedural rules, "[n]ew substantive rules generally apply retroactively." Id. at 351, 124 S.Ct. 2519. This category "includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish." Id. at 351–52, 124 S.Ct. 2519 (citation omitted). It also includes "rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." Penry v. Lynaugh , 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), overruled on other grounds by Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

Although it is common for courts to "refer[ ] to rules of this ... type as falling under an exception to Teague ’s bar on retroactive application of procedural rules," "they are more accurately characterized as substantive rules not subject to the bar." Schriro , 542 U.S. at 352 n.4, 124 S.Ct. 2519. After all, " Teague by its terms applies only to procedural rules." Bousley v. United States , 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). To be sure, there is no practical difference between a rule that falls within "an exception to Teague ’s bar" and a rule "not subject to the bar." Schriro , 542 U.S. at 352 n.4, 124 S.Ct. 2519. But the doctrinal basis of the retroactivity of substantive rules is independent of Teague and indeed long predates it.

More than a century before Teague , the Supreme Court held that prisoners could use the writ of habeas corpus to challenge the substantive validity of their convictions and sentences. Traditionally, of course, the writ was unavailable to challenge mere error by the sentencing court. The habeas jurisdiction of the federal courts was subject to "limitations ... arising from the nature and objects of the writ itself, as defined by the common law." Ex parte Siebold , 100 U.S. 371, 375, 25 L.Ed. 717 (1879). And "the general rule [was] that a conviction and sentence by a court of competent jurisdiction [was] lawful cause of imprisonment," from which "no relief [could] be given by habeas corpus ." Id. "The only ground" for relief "to a prisoner under conviction and sentence of another court [was] the want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void." Id.

In Siebold , the best known of a number of late-nineteenth-century decisions with similar rationales, the Court held that a prisoner’s argument that his statute of conviction was unconstitutional did not exceed the limited scope of the writ. The Court reasoned that an unconstitutional statute "affects the foundations of the whole proceedings." Id. at 376. After all, "[a]n unconstitutional law is void, and is as no law." Id. So, the Court deduced, "[a] conviction under it is not merely erroneous, but is illegal and void." Id. And because the trial court’s "authority to indict and try the petitioners arose solely upon the[ ] laws" they challenged, "if the laws [were] unconstitutional," it followed that "the [trial court] acquired no jurisdiction of the causes." Id. at 377. In other decisions, the Court employed the same jurisdictional logic to hold that habeas corpus was available to correct a sentence imposed without legal authority. See, e.g. , In re Bonner , 151 U.S. 242, 255, 14 S.Ct. 323, 38 L.Ed. 149 (1894) ; In re Mills , 135 U.S. 263, 270, 10 S.Ct. 762, 34 L.Ed. 107 (1890) ; Ex parte Lange , 85 U.S. 18 Wall. 163, 176, 21 L.Ed. 872 (1873). The Court treated each of these cases "not [as] a case of mere...