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KICKING THE CAN

Al Embry was sentenced as a career offender, based on a prior conviction for “wanton endangerment.” After the 6th Circuit held in Pawlak v. United States that Johnson applies to “career offender” sentences, Al asked the Circuit for permission to file a second-and-successive 2255 challenging his sentence.

Last week, the 6th Circuit – clearly wrestling with the issue – kicked the can down the road, holding that Embry should be allowed to file a second 2255 and that the district court should hold the motion in abeyance until the Supreme Court acts on Beckles v. United States.

The Court noted that the right to bring a successive 2255 motion does not turn on circuit authority alone, but instead on whether there is a “new rule” “made retroactive to cases on collateral review by the Supreme Court.” In this case, although Pawlak is a great decision, it is not a Supreme Court decision. The Supremes have not yet determined whether Johnson also dooms the Guidelines’ residual clause, “and there are respectable constitutional arguments that the vagueness doctrine does not apply to the advisory Guidelines.”

When the Supreme Court decides Beckles v. United States next term, “we should have answers to the pertinent questions: Does the vagueness doctrine apply to the advisory Sentencing Guidelines? If so, is that a new rule or one dictated by Johnson, and does the decision apply retroactively? Through it all, does the Court’s decision resolve, or help to resolve, the lurking statute of limitations question? With so much in play, the most important question may be a practical one: Where to set the queue for all of the “Johnson” motions that target sentences affected by the residual clause of the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2)? In the court of appeals? In the district courts? Or in the offices of public defenders and the defense lawyers by rejecting the motions now? All things considered, it makes the most sense to grant the gatekeeping motions, send the cases to the district courts, and ask the district courts to hold the cases in abeyance pending the Supreme Court’s decision in Beckles. After the Supreme Court resolves some or (hope springs eternal) all of these questions, the district courts will be well positioned to handle these cases fairly and efficiently.”

In re Embry, Case No. 16-5447 (6th Cir.  July 29, 2016)