We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
HOPE AND HYPE FOLLOWS DIMAYA RULING
Judging from the flames erupting from our Corrlinks email inbox, federal prisoners’ excitement over Sessions v. Dimaya is at a fever pitch. We have had requests from guys with convictions for drugs, tax evasion, bank robbery and even child porn downloading for help on using Dimaya to attack their sentences. At the same time, we hear that inmates are hearing from several “paralegal” firms urging them to file Dimaya petitions.
As Lee Corso likes to say, “Not so fast, my friend.” First, while Dimaya could be huge down the road, it is not huge yet. Dimaya held that 18 USC 16(b), which defines a “crime of violence” to include “any other offense that… by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” was struck down as unconstitutionally vague. As the court put it, “Johnson tells us how to resolve this case… None of the minor linguistic disparities in the statutes makes any real difference.”
Dimaya principally helps people facing deportation for “aggravated felonies,” which are defined as including “crimes of violence” as defined in 16(b). Right behind them may be people with 18 USC 924(c) convictions whose underlying crime was a crime of violence under the residual clause. The case does not help people who got Guideline enhancements for crimes of violence that are no longer violent. The Supreme Court saw to that in the Beckles case.
Second, Dimaya has not suspended the many procedural hurdles facing people wanting to attack their already-imposed sentences. Dimaya has not been declared to be retroactive, although it may be in the future. Dimaya has nothing to do with sex, drugs or taxes. Most important, as law professor Leah Litman wrote in the Harvard Law Review Blog last Tuesday, “it’s not yet clear how many wrongs of the past Dimaya will ultimately right. Whether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review.”
Those restrictions include retroactivity, limitations on second-and-successive 2255 motions, limitations on 2241 “actual innocence” motions, and the statute of limitations set out in 28 USC 2255(f)(3). Prof. Litman noted that people sentenced based on 16(b) have a year from Dimaya to file, “but what about prisoners who were convicted or sentenced under provisions that closely resemble section 16(b)? It’s not clear whether the statute of limitations has restarted for them.”
For example, 16(b) and 924(c)(3)(B) use very similar residual clause language, but they are not identical. Prof. Litman wrote “assuming a court of appeals thinks that the best reading of Dimaya is that section 924(c)(3)(B) is also unconstitutionally void for vagueness, did Dimaya restart the statute of limitations clock for persons convicted of section 924(c)(3)(B)? On the one hand, we want errors of that kind to be corrected, and corrected quickly, given that prisoners whose convictions may be affected could be serving more time in prison than they should be. On the other hand, Dimaya didn’t involve section 924(c); it just involved the materially identical section 16(b). In light of that, did the “Supreme Court” itself recognize that section 924(c) is void for vagueness, as the statute of limitations provision requires? Perhaps not.”
Dimaya has potential, but even if it benefits you, it’s a procedural furball. Part with your money very carefully.
Sessions v. Dimaya, Case No. 15-1498 (Supreme Court, Apr. 17, 2018)
Harvard Law Review Blog, Vague Criminality and Mass Incarceration: Will Dimaya End the Insanity? (Apr. 17, 2018)
– Thomas L. Root
