SCOTUS Decisions on Johnson retroactivity, plain error under the federal sentencing guidelines, SORNA, and AEDPA Deference
The U.S. Supreme Court in April issued four decisions of interest to public defenders.
In Welch v. United States, decided April 18, the Court held that its decision striking down the residual clause of the Armed Career Criminal Act as unconstitutionally vague was retroactive to cases on collateral review.
Last term, in Johnson v. United States, the Court held that ACCA’s residual clause, which enhances penalties for persons with three or more “violent felonies,” defined as crimes involving “conduct that presents a serious potential risk of physical injury to another,” was void for vagueness.
The question here was “whether Johnson is a substantive decision with retroactive effect in cases (like Welch’s) on collateral review.” The Court held that it was.
The Court noted that under its Teague jurisprudence, new constitutional rules are not retroactive unless they are new substantive rules, or are watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the proceedings.
Johnson announced a new substantive rule, the Court held.
“A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes,” the Court said. “This 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.”
“By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering ‘the range of conduct or the class of persons that the [Act] punishes,” the Court concluded.
Justice Thomas was alone in dissenting.
PLAIN ERROR UNDER SENTENCING GUIDELINES
In Molina-Martinez v. United States, decided April 20, the Court made it easier to prove plain error when a district court mistakenly applies a sentencing range higher than the applicable one under the federal sentencing guidelines.
Saul Molina-Martinez was sentenced to 77 months, under a guideline range of 77 to 96 months. This range, however, was mistaken due to an error in calculating his criminal history points.
The error was noticed for the first time on appeal, where Molina-Martinez argued that he should be resentenced using a correct range of 70 to 87 months.
The Fifth Circuit rejected Molina-Martinez’s plain error claim because he could not show prejudice. The Fifth Circuit held that Molina-Martinez was required to identify “additional evidence” to prove that he would have received a different sentence.
The U.S. Supreme Court reversed. The Court held that the Fifth Circuit had read too much into the plain error rule, 52(b). That Rule allows relief for unpreserved plain errors that affect “substantial rights.” To obtain relief, a defendant must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different.
“Nothing in the text of Rule 52(b), its rationale, or the Court’s precedents supports a requirement that a defendant seeking appellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings,” the Court held. “When a defendant is sentenced under an incorrect Guidelines range – whether or not the defendant’s ultimate sentence falls within the correct range – the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome.”
The Court said that, in rare cases, a reasonable probability of different outcome may not exist. One example may be where the judge gave a “detailed explanation” of the sentence imposed that made clear the sentence was based on “factors independent of the Guidelines.”
“Where, however, the record is silent as to what the district court might have done had it considered the correct Guidelines range, the court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights,” the Court concluded.
Justices Alito and Thomas concurred in the judgment, but refused to “speculate about how often the reasonable probability test will be satisfied in future cases.”
In Nichols v. United States, decided April 4, the Court unanimously held that SORNA does not require a sex offender who leaves a jurisdiction to move to a foreign country to register his departure in the State he left.
42 U.S.C. Sec. 16913(c) requires that sex offenders “appear in person in at least 1 jurisdiction involved pursuant to subsection (a)” and inform that jurisdiction whenever there is a change of name, residence, employment or student status. Subsection (a) provides that a sex offender “shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.”
Under the statutory scheme, a sex offender is to notify only one “jurisdiction involved,” and that jurisdiction must then notify the other jurisdiction.
Lester Nichols was charged with failing to update his registration in Kansas when he moved to the Philippines.
The question in Nichols was whether Kansas, where he formerly resided, was an “involved jurisdiction” under Sec. 16913. The Supreme Court held it was not.
First, the Court noted that subsection (a) creates three possible jurisdictions: where the offender resides, is an employee, or is a student. A foreign country is not a jurisdiction, the Court said.
Second, “Sec. 16913(a) uses only the present tense: ‘resides,’ ‘is an employee,’ ‘is a student,’” the Court said. A person who moves from Kansas to the Philippines “no longer ‘resides’ (present tense) in Kansas,” the Court said.
“It follows that once Nichols moved to Manila, he was no longer required to appear in person in Kansas to update his registration, for Kansas was no longer a ‘jurisdiction involved pursuant to subsection (a)’ of Sec. 16913,” the Court concluded.
Going forward, the Court noted that its decision may have little practical effect, since Congress recently amended the law to now require persons like Nichols to register their foreign travel.
The new “International Megan’s Law,” to be codified at 18 U.S.C. Sec. 2250(b), requires sex offenders to report foreign travel, including “anticipated dates and places of departure, arrival, or return,” “carrier and flight numbers for air travel,” and “destination country and address or other contact information therein.”
“Both parties agree that the new law captures Nichols’s conduct,” the Court said.
In a brief per curiam opinion, Woods v. Etherton, decided April 4, the Court again emphasized the substantial deference federal courts must give state courts in deciding habeas claims.
Timothy Etherton claimed his appellate counsel was ineffective in failing to appeal an alleged Confrontation Clause violation, when police repeatedly testified about an anonymous tip about drugs in a car that led to Etherton’s car being stopped. Drugs were found in the car. The trial court instructed the jury that the tip “was not evidence,” and was admitted “only to show why the police did what they did.”
After state courts and a lower federal court denied relief on a claim of ineffective appellate counsel, the Sixth circuit granted relief. The Sixth Circuit held that the repetition of the tip testimony at trial “went far beyond what was necessary for background,” and showed the tip was “admitted for its truth.” The court held that appellate counsel was ineffective in failing to raise this issue, despite substantial evidence of guilt.
The Supreme Court reversed.
Under AEDPA, 28 U.S.C. 2254(d)(1), federal habeas relief is available only if a state court’s decision is “contrary to, or involved an unreasonable application of, clearly established federal law,” as determined by the U.S. Supreme Court.
“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision,” the Court said. AEDPA review is “doubly deferential” in ineffective assistance claims.
“Without ruling on the merits of the [Sixth Circuit’s] holding that counsel had been ineffective, we disagree with the determination that no fairminded jurist could reach a contrary conclusion,” the Court said. “[T]he Sixth Circuit did not apply the appropriate standard of review under AEDPA.”
No U.S. Supreme Court precedent holds that repetition of a tip necessarily means it was offered for its truth, the Court said. Moreover, a fairminded jurist could conclude that Etherton was not prejudiced, given both other evidence of guilt and that the information in the tip was “uncontested” at trial.
“Given AEDPA, both Etherton’s appellate counsel and the state habeas court were to be afforded the benefit of the doubt,” the Court concluded.