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GOVERNMENT DENIED REHEARING ON 4TH CIRCUIT WHEELER CASE
We reported last April that in United States v. Wheeler, the 4th Circuit had reversed years of enforcing a policy of denying collateral review to people who improperly received higher sentences due to prior convictions, in a decision that defined when the 28 USC 2255(e) “savings clause” would let someone file a 28 USC 2241 habeas corpus action.
Gerald Wheeler had gotten a higher sentence because of a prior North Carolina drug felony that years later was ruled in United States v. Simmons to not be a felony. But Simmons’ retroactivity came too late for Jerry, whose 2255 motion had already been denied. He filed a 2241 motion, which was denied by the district court because he could only show he was actually innocent of the sentence, not of the underlying conviction.
Whether the 2255(e) savings clause applies to sentences as well as to convictions was left hanging in the 2016 United States v. Surratt case, which was dismissed on rehearing in the 4th Circuit when Mr. Surratt got a commutation from President Obama. After Mr. Wheeler won, the government requested rehearing en banc. Such requests from the government are rare and are usually granted by appeals courts. But last week, the 4th Circuit denied rehearing, making Wheeler binding precedent.
The 10th and 11th Circuits have held that a 2241 is never available to correct a change in the law. But seven other circuits permit a 2241 under the “savings clause” where a change in the law makes a defendant actually innocent of the underlying offense. Now, three circuits – the 4th, 6th and 7th – even permit a sentencing-based claim to proceed on 2241 via the saving clause.
Two 4th Circuit judges filed concurrences on the rehearing denial. One said that to deny Wheeler the right to test the legality of his sentence would be a miscarriage of justice. The other blasted the decision as defeat the Antiterrorism and Effective Death Penalty Act by letting inmates endlessly relitigate, saying “the issues in this case are of significant national importance and are best considered by the Supreme Court at the earliest possible date in order to resolve an existing circuit split that the panel decision broadens even farther. Because of the potential that the case may become moot if Wheeler is released from incarceration in October 2019, as projected, I have not requested a poll of the Court upon the petition for rehearing en banc in order to expedite the path for the Government to petition for certiorari to the Supreme Court.”
Supreme Court review of Wheeler might delay some inmates who can use the decision right away, but a review of the circuit split on proper use of the “savings clause” is long overdue. Professor Doug Berman of Ohio State University law school predicted in his sentencing blog last week that “this issue, if not this case, will be taken up by SCOTUS relatively soon. But I have said this and been wrong before, so maybe I will be blogging in six months saying, ‘Hey, I was wrong’. But I don’t know that I’ll ever admit that, but I’ll find some kind of an excuse for why my SCOTUS prediction was off.”
Order, United States v. Wheeler (4th Cir., June 11, 2018)
Sentencing Law and Policy, Spotlighting lower-court divides over AEDPA’s savings clause and consideration of sentencing errors (June 12, 2018)
– Thomas L. Root
