On Johnson retroactivity, the Eleventh Circuit splits with the Seventh Circuit

Last week, the Seventh Circuit held that Johnson v. United States, which held that increasing a sentence under the Armed Career Criminal Act's residual clause is unconstitutional, applied retroactively on collateral review. Today, the Eleventh Circuit, in a 2-to-1 decision, came to the opposite conclusion.

The majority opinion starts this way:

This application for leave to file a second or successive motion to vacate, set aside, or correct a federal sentence requires us to decide whether the decision of the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), established "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," 28 U.S.C. § 2255(h)(2). Gilberto Rivero was sentenced as a career offender under what were mandatory United States Sentencing Guidelines, and his judgment of conviction and sentence was upheld on direct appeal and collateral review, id. § 2255. Rivero now applies for leave to file a second or successive motion under section 2255. Because we hold that Johnson did not establish a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, we deny Rivero's application.

The majority disagreed with the Seventh Circuit:

We acknowledge that one of our sister circuits has held that Johnson applies retroactively to decisions on collateral review, but we are unpersuaded by that decision. See Price v. United States, No. 15-2427 (7th Cir. Aug. 4, 2015). In Price, the Seventh Circuit explained that "[t]here is no escaping the logical conclusion that the [Supreme] Court itself has made Johnson categorically retroactive to cases on collateral review" because "[a] defendant who was sentenced under the residual clause necessarily bears a significant risk of facing a punishment that the law cannot impose upon him." Id. at *7. We disagree. We can "escap[e] th[at] logical conclusion" because Congress could impose the punishment in Johnson if Congress did so with specific, not vague, language.

Judge Jill Pryor dissented:

I dissent because I believe that in Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court announced a new substantive rule of constitutional law that the Court has made retroactive to cases on collateral review. In no uncertain terms, the Supreme Court has said that "decisions that narrow the scope of a criminal statute by interpreting its terms . . . . apply retroactively . . . ." The majority concedes that Johnson is that very type of narrowing decision. So does the government, which does not contest Johnson's retroactivity.

Will be interesting to see how this plays out.