United States v. Derrek Arrington ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 7, 2021 Decided July 13, 2021
No. 19-3086
UNITED STATES OF AMERICA,
APPELLEE
v.
DERREK E. ARRINGTON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:00-cr-00159-1)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Tony Axam Jr., Assistant
Federal Public Defender, entered an appearance.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman, Assistant U.S. Attorney at the time the brief was
filed, and John P. Mannarino, Assistant U.S. Attorney.
Before: ROGERS, TATEL, and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
2
Dissenting opinion filed by Circuit Judge WALKER.
TATEL, Circuit Judge: Under the Antiterrorism and
Effective Death Penalty Act (AEDPA), an otherwise untimely
habeas petition is timely if it is filed within a year of “the date
on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review.” 28 U.S.C. § 2255(f)(3). In this case, a
habeas petitioner argues that the Supreme Court’s decision in
Johnson v. United States, 576 U.S. 591 (2015), which struck
down the Armed Career Criminal Act’s “residual clause” as
unconstitutionally vague, invalidates his sentence because his
sentencing judge arrived at it in reliance on an identical
“residual clause” contained in the U.S. Sentencing Guidelines.
The question presented here is whether the “right asserted” by
the petitioner was, as he argues, “initially recognized by the
Supreme Court” in Johnson. Because it was, we reverse the
district court’s decision denying the petition as untimely.
I.
On September 18, 2000, a federal jury convicted Derrek
Arrington of assaulting a federal officer with a dangerous
weapon in violation of 18 U.S.C. § 111(a) and (b), and of
unlawfully possessing a firearm as a convicted felon in
violation of 18 U.S.C. § 922(g). Applying the U.S. Sentencing
Guidelines, the judge calculated a 210- to 262-month
sentencing range, which became 210 to 240 months because of
the 10-year statutory maximum on each count. Because the
judge sentenced Arrington before the Supreme Court rendered
the Sentencing Guidelines advisory in United States v. Booker,
543 U.S. 220 (2005), that range was mandatory. The judge then
sentenced Arrington to 240 months in prison.
3
Arrington faced a heightened sentencing range because of
two Guidelines provisions. (Since Arrington was sentenced
under the 2000 version of the Guidelines, our citations and
discussion refer exclusively to that edition.) The first provision,
section 2K2.1(a), applies a higher base offense level for the
unlawful possession of a firearm “if the defendant had at least
two prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). The
second, section 4B1.1, classifies a defendant as “a career
offender” and applies a sentencing enhancement if, among
other things, “the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1. Both provisions refer to
a “crime of violence,” which the operative version of the
Guidelines defined as “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that
(1) has as an element the use, attempted use, or threatened use
of physical force against the person of another, or (2) is
burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a). That last portion—“or otherwise involves conduct
that presents a serious potential risk of physical injury to
another”—is known as the definition’s “residual clause.” The
sentencing judge found that Arrington qualified as a “career
offender” under section 4B1.1 and that Arrington’s unlawful
possession count qualified for an enhanced base offense level
under section 2K2.1(a)(2) because Arrington had at least two
prior robbery convictions that qualified as “crimes of
violence.” We affirmed on direct appeal. United States v.
Arrington, 309 F.3d 40 (D.C. Cir. 2002).
In December 2003, Arrington filed a pro se motion for
post-conviction relief under 28 U.S.C. § 2255, which the
4
district court denied in April 2007. We then denied his
application for a certificate of appealability.
Arrington’s present petition follows several intervening
legal developments central to the issue before us. As already
mentioned, the Supreme Court in Booker rendered the
Sentencing Guidelines advisory while Arrington’s first petition
was still pending. Booker, 543 U.S. at 245. Then, on June 26,
2015, the Court held in Johnson that the constitutional
“prohibition of vagueness in criminal statutes” applies “to
statutes fixing sentences” and that the Armed Career Criminal
Act of 1984’s (ACCA) “residual clause” was
unconstitutionally vague. Johnson, 576 U.S. at 595–97. Under
the ACCA, “a defendant convicted of being a felon in
possession of a firearm faces more severe punishment if he has
three or more previous convictions for a ‘violent felony,’ a term
defined” in the ACCA’s so-called residual clause, just as in the
Sentencing Guidelines, “to include any felony that ‘involves
conduct that presents a serious potential risk of physical injury
to another.’” Id. at 593 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).
Finally, shortly after deciding Johnson, the Supreme Court held
that “Johnson announced a substantive rule that has retroactive
effect in cases on collateral review.” Welch v. United States,
136 S. Ct. 1257, 1268 (2016).
On April 27, 2016, just days after that retroactivity
decision and within a year of Johnson, Arrington filed a
petition with our court for leave to file an attached successive
section 2255 motion challenging his sentencing enhancements
in light of Johnson. Shortly thereafter, a motions panel
authorized him to file his petition. Arrington then filed a
supplemental motion in May 2017 and, a little over two years
later, the district court denied his motion as untimely. United
States v. Arrington, No. 1:00-CR-00159 (RCL), 2019 WL
4644381 (D.D.C. Sept. 24, 2019). Arrington now appeals.
5
II.
Under AEDPA, a federal prisoner may petition a district
court to vacate, set aside, or correct his sentence on the grounds
“that the sentence was imposed in violation of the Constitution
or laws of the United States, . . . or that the sentence was in
excess of the maximum authorized by law, or is otherwise
subject to collateral attack.” 28 U.S.C. § 2255(a).
Section 2255(f) imposes a timeliness requirement on such a
petition: “A 1-year period of limitation shall apply to a motion
under this section.” Id. § 2255(f). “The limitation period shall
run from the latest of” several events, including, as relevant
here, “the date on which the judgment of conviction becomes
final,” id. § 2255(f)(1), or “the date on which the right asserted
was initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review,” id.
§ 2255(f)(3). A renewed limitations period under the latter
provision, section 2255(f)(3), begins when the Court declares
a new right, not when it deems the right retroactive. See
Dodd v. United States, 545 U.S. 353, 356–60 (2005).
Arrington’s petition is timely if, as he argues,
section 2255(f)(3) applies, since then the statute of limitations
would have begun running when the Supreme Court decided
Johnson less than a year before Arrington filed his petition. But
if section 2255(f)(3) does not apply, then Arrington’s petition
is untimely, since his limitation period would have begun to
run when his conviction became final in 2003. See Arrington v.
United States, 537 U.S. 1241 (2003) (denying petition for a
writ of certiorari on direct review); Clay v. United States, 537
U.S. 522, 527 (2003) (“Finality attaches when this Court
affirms a conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for filing a
certiorari petition expires.”). Whether Arrington’s motion is
timely under section 2255(f)(3) is a question of law we review
6
de novo. United States v. Scurry, 992 F.3d 1060, 1065 (D.C.
Cir. 2021).
Determining whether section 2255(f)(3) applies requires
us to answer two related questions, both prompted by that
section’s text. First, what “right” did the Supreme Court
“recognize” in Johnson? And second, does Arrington “assert”
that right here?
In Johnson, the Supreme Court considered whether the
ACCA’s residual clause—identical to the clause appearing in
the Guidelines—could “survive[] the Constitution’s
prohibition of vague criminal laws.” 576 U.S. at 593. Holding
that it could not, the Court explained that the residual clause
violated the Fifth Amendment’s requirement that “statutes
fixing sentences” must “give ordinary people fair notice of the
conduct [they] punish[]” and must not be “so standardless that
[they] invite[] arbitrary enforcement.” Id. at 595–96. Because
the ACCA’s residual clause asked whether the crime “involves
conduct” presenting too much risk of physical injury, rather
than whether it has “as an element the use” of force, it
“require[d] courts to . . . picture the kind of conduct that the
crime involves in the ordinary case, and . . . judge whether that
abstraction presents a serious potential risk of physical injury.”
Id. at 596 (internal quotation marks omitted). By tying “the
judicial assessment of risk to a judicially imagined ‘ordinary
case,’” that approach left both “grave uncertainty about how to
estimate the risk posed by a crime” and “about how much risk
it takes for a crime to qualify as a violent felony.” Id. at 597–
98. “By combining indeterminacy about how to measure the
risk posed by a crime with indeterminacy about how much risk
it takes for the crime to qualify as a violent felony, the residual
clause produce[d] more unpredictability and arbitrariness than
the Due Process Clause tolerates.” Id. at 598.
7
The Supreme Court examined Johnson’s consequences in
two later cases. First, in Beckles v. United States, 137 S. Ct. 886(2017), the Court held that the post-Booker advisory
Sentencing Guidelines’ residual clause—the same language at
issue in this case—was not unconstitutionally vague under the
principles announced in Johnson. The Court explained that
“the [advisory] Guidelines are not amenable to a vagueness
challenge” because “they merely guide the district courts’
discretion.” Id. at 894. Unlike the ACCA, the Court
emphasized, the advisory Guidelines “do not fix the
permissible range of sentences” and instead “merely guide the
exercise of a court’s discretion in choosing an appropriate
sentence within the statutory range.” Id. at 892. Significantly
for our purposes, the case before us is virtually identical to
Beckles, but with one important distinction: Arrington was
sentenced under the mandatory, rather than advisory,
Sentencing Guidelines.
Second, in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the
Court held that the residual clause in 18 U.S.C. § 16(b), which
“provides the federal criminal code’s definition of ‘crime of
violence,’” was void for vagueness. Id. at 1210–11.
Section 16(b)’s definition of a crime of violence is similar, but
not identical, to that of the ACCA and Guidelines. See 18
U.S.C. § 16(b) (defining a “crime of violence” to include “any
other offense that is a felony and 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”). The Court concluded that section 16(b) was
unconstitutionally vague because it had “the same ‘[t]wo
features’ that ‘conspire[d] to make [ACCA’s residual clause]
unconstitutionally vague.’” Dimaya, 138 S. Ct. at 1216(alterations in original) (quoting Johnson, 576 U.S. at 597). “It
too ‘require[d] a court to picture the kind of conduct that the
crime involves in “the ordinary case,” and to judge whether that
8
abstraction present[ed]’ some not-well-specified-yet-
sufficiently-large degree of risk.” Id. (quoting Johnson, 576
U.S. at 596–97). The Court described the application of
Johnson in Dimaya as “straightforward,” and Johnson’s
reasoning as “effectively resolv[ing] the case,” as section 16(b)
had “the same two features as [the ACCA], combined in the
same constitutionally problematic way.” Id. at 1213. In other
words, the Court declared, “Johnson tells us how to resolve this
case.” Id. at 1223.
Arrington argues that, even though Johnson arose in the
specific context of the ACCA’s residual clause, the “right”
Johnson “recognized” was, as the Seventh Circuit put it, a
person’s more general “‘right not to have his sentence dictated
by the unconstitutionally vague language’” used in that statute.
Pet’r’s Br. 18–19 (emphasis omitted) (quoting Cross v. United
States, 892 F.3d 288, 294 (7th Cir. 2018)). Because Arrington
“asserts precisely th[at] right” in his challenge to the mandatory
Sentencing Guidelines’ identical language, he contends that his
petition is timely. Pet’r’s Br. 20. By contrast, the government
contends that “‘the only right recognized by the Supreme Court
in Johnson was a defendant’s right not to have his sentence
increased under the residual clause of the ACCA,’” Resp’t’s
Br. 22 (quoting United States v. Greer, 881 F.3d 1241, 1248
(10th Cir. 2018)), or, as in the broader formulation the
government offered at oral argument, under the residual clause
of a statute, Oral Arg. Tr. 22:4–8. As the government sees it,
because Johnson conclusively resolved only the
constitutionality of the ACCA’s residual clause and does not
dictate the unconstitutionality of the mandatory Guidelines’
residual clause, the “right asserted” in Arrington’s petition
cannot have been “initially recognized” in Johnson. 28 U.S.C.
§ 2255(f)(3).
9
We agree with Arrington. The description he embraces—
of a right not to have one’s sentence dictated by a rule of law
using the residual clause’s vague language—fits neatly into our
ordinary sense of how courts are to extract general rights from
particular cases. And it gets right the general principle
recognized by Johnson and its progeny: that the residual
clause’s language requires judges to engage in an inquiry so
standardless as to be unconstitutional, and that such an
indeterminate approach to sentencing is unconstitutional even
if, as here, it appears outside the ACCA or in modified form.
That some superficially similar contexts may be
distinguishable, as in Beckles, changes little. At most, Beckles
should lead us to refine our description of Johnson’s right, just
as Arrington does, so as to limit it to cases where the vague
language dictates a defendant’s sentence. Whether or not
Arrington’s case indeed falls within that refined articulation of
the right, he has plainly “asserted” that right as the basis for his
petition.
Arrington’s approach finds support in section 2255(f)(3)’s
language. That provision turns on what “right” the Supreme
Court recognized in a prior case. It does not turn on the case’s
precise holding or, as AEDPA does elsewhere, the content of
“clearly established Federal law.” See 28 U.S.C. § 2254(d)(1).
Though dictionaries offer countless definitions for the many
uses of the word “right,” all relevant definitions invariably
define a “right” at a relatively high level of generality. See, e.g.,
Right, Webster’s Third New International Dictionary (1993)
(defining a “right” as “a power or privilege vested in a person
by the law to demand action or forbearance at the hands of
another”); Right, Oxford English Dictionary (3d ed. 2010)
(defining a “right” as “[a] legal, equitable, or moral title or
claim to the possession of property or authority, the enjoyment
or privileges or immunities, etc.,” and offering as examples
“freedom of speech, democracy, [and] the rule of law”); Right,
10
Black’s Law Dictionary (7th ed. 1999) (defining a “right” as
“[s]omething that is due to a person by just claim, legal
guarantee, or moral principle” and offering as an example the
“right of liberty”); Right, American Heritage Dictionary (2d
College Ed. 1985) (defining a “right” as “[s]omething that is
due to a person by law, tradition, or nature” and offering as an
example the “right of free speech”); see also Shea v. United
States, 976 F.3d 63, 73 (1st Cir. 2020) (“Congress in § 2255
used words such as ‘rule’ and ‘right’ because it recognizes that
the Supreme Court guides—and indeed binds—the lower
courts not just with technical holdings confined to the precise
facts of each case but with general rules that are logically
inherent in those holdings.” (internal quotation marks
omitted)). The government’s argument for a narrow description
of the right recognized in Johnson therefore faces an uphill
climb—one made even more difficult given Dimaya’s
demonstration that Johnson may be “straightforwardly”
extended to different language contained in a different statute.
The central defect in the government’s approach is this: by
arguing that Arrington’s petition is untimely because Johnson
does not “mandate[] the outcome of Arrington’s challenge,”
Resp’t’s Br. 30, the government collapses the timeliness and
merits inquiries into one. See Cross, 892 F.3d at 293 (“The
government’s approach suffers from a fundamental flaw. It
improperly reads a merits analysis into the limitations
period.”). But the government identifies no statutory basis for
conflating whether Arrington asserts the right recognized in
Johnson with whether that right actually controls the outcome
in his case. Indeed, the government’s view requires us to
discount almost entirely the statute’s use of the words “right”
and “asserted.” We have never treated section 2255(f)(3) as
requiring the kind of merits-based analysis the government
urges; in fact, we have expressly declined to conduct such an
inquiry in a closely related context. See In re Williams, 759
11
F.3d 66, 68–70 (D.C. Cir. 2014) (declining to determine
whether petitioner “rel[ied] on” a Supreme Court ruling or
“instead relie[d] on an extension of” that ruling for purposes of
28 U.S.C. § 2255(h)(2), and concluding that petition was
timely under section 2255(f)(3) without so determining either).
In the same vein, it makes no difference whether, as the
government insists, Johnson left open “the question whether a
defendant has a right not to be sentenced under the mandatory
Guidelines’ residual clause.” Resp’t’s Br. 21; see also Beckles,
137 S. Ct. at 903 n.4 (Sotomayor, J., concurring in the
judgment) (observing that Beckles “leaves open the question
whether defendants sentenced” before Booker “may mount
vagueness attacks on their sentences”). In arguing that he does
have such a particularized right, Arrington plainly asserts the
more general right, recognized in Johnson, not to have his
sentence dictated by the unconstitutionally vague language
contained in the mandatory residual clause.
Perhaps the government’s point is that in describing a
right, we should craft our description narrowly enough to
plainly exclude any cases where the right does not squarely
dictate the result. In other words, a litigant can be said to
“assert” a right only if the right in fact applies to his case. But
that approach reads the word “asserted” out of
section 2255(f)(3). The American Heritage Dictionary defines
“asserted” to mean “[c]onfidently stated to be so but without
proof; alleged.” Asserted, The American Heritage Dictionary
of the English Language (4th ed. 2000). Black’s Law
Dictionary defines “assert” to mean “[t]o state positively” or
“[t]o invoke or enforce a legal right.” Assert, Black’s Law
Dictionary (11th ed. 2019). Similarly, the Oxford English
Dictionary defines “assert” to mean “[t]o maintain practically,
insist upon, or vindicate a (disputed) claim to (anything).”
Assert, Oxford English Dictionary (2d ed. 1989). And in
distinguishing “assert” from related synonyms, Merriam-
12
Webster’s notes that “assert” “may imply . . . lack of proof for
the statement,” Assert, Webster’s Third New International
Dictionary (1993), that it “mean[s] to state positively usu[ally]
in anticipation of denial or objection,” Assert, Merriam-
Webster’s Collegiate Dictionary (10th ed. 1996), and that it
“implies stating confidently without need for proof or regard
for evidence,” id. Accordingly, for a motion to be timely under
section 2255(f)(3), it need only “state” or “invoke” the newly
recognized right, not conclusively prove that the right applies
to the movant’s circumstances. See Cross, 892 F.3d at 294
(“[Section 2255(f)(3)] does not say that the movant must
ultimately prove that the right applies to his situation; he need
only claim the benefit of a right that the Supreme Court has
recently recognized. An alternative reading would require that
we take the disfavored step of reading ‘asserted’ out of the
statute.”); see also United States v. Snyder, 871 F.3d 1122,
1126 (10th Cir. 2017) (“[I]n order to be timely under
§ 2255(f)(3), a § 2255 motion need only ‘invoke’ the newly
recognized right, regardless of whether or not the facts of
record ultimately support the movant’s claim.”). Indeed, the
word “asserted” affirmatively suggests that the matter asserted
may lack proof or be subject to dispute.
The government’s view is also at odds with the way we
ordinarily speak about rights. Suppose an individual challenges
a speech restriction, but it turns out her speech was unprotected
incitement. Applying section 2255’s vocabulary, we could
quite naturally say that she had asserted the right to free speech
recognized by the First Amendment, even though she was
ultimately wrong about that right’s application to her case. To
be sure, the “right to free speech” is broader than the right
Arrington argues was recognized in Johnson. We use the
example, however, to demonstrate a generally applicable
linguistic point: “asserting” a right is an entirely different
matter than proving that you can successfully claim its benefit.
13
Indeed, courts routinely describe litigants as “asserting” rights
that, in the end, do not apply to their circumstances. See, e.g.,
Samuels v. McCurdy, 267 U.S. 188, 199–200 (1925) (“[T]he
petitioner does not deny that the liquor seized was within the
condemnation of the law and that he has no defense to his
possession of it except as he asserts a property right protected
by the Fourteenth Amendment which we have found he does
not have.”); United States v. Chester, 628 F.3d 673, 682–83
(4th Cir. 2010) (“Although Chester asserts his right to possess
a firearm in his home for the purpose of self-defense, we
believe his claim is not within the core right identified in Heller
. . . .”); Yakama Indian Nation v. Washington Department of
Revenue, 176 F.3d 1241, 1247 (9th Cir. 1999) (“If [sovereign]
immunity does not extend to shield the Nation from the
Department’s seizure and forfeiture of the Nation’s unstamped
cigarettes, then the federal right the nation asserts does not exist
in this case and there is no federal right that requires vindication
in federal court.”).
Our dissenting colleague adopts a narrow reading of the
right recognized in Johnson. He does so not because of any
apparent disagreement with our textual analysis, but instead
because the Supreme Court has repeatedly admonished courts
against “framing [its] precedents at . . . a high level of
generality” with respect to AEDPA. Nevada v. Jackson, 569
U.S. 505, 512 (2013) (per curiam). But as our colleague
recognizes, that caution has come only in the context of
defining “clearly established Federal law” for purposes of 28
U.S.C. § 2254(d)(1). On its face, that seems a rather different
inquiry from the one we face here—whether a petitioner has
simply asserted a right recognized by the Court—and our
colleague offers no authority from this court or the Supreme
Court suggesting that the two provisions should be construed
alike. Indeed, the fact that Congress, in passing AEDPA,
referred to “clearly established Federal law” in section
14
2254(d)(1) but spoke instead in the more general language of
“rights” in section 2255(f)(3) suggests that it meant something
by its differing language choices. See Russello v. United States,
464 U.S. 16, 23 (1983) (“Where Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion.” (alteration omitted) (internal quotation marks
omitted)). Equally significant, the Court has explained that
section 2254(d)(1)’s standard is “difficult to meet” because a
section 2254 habeas petition “intrudes on state sovereignty” by
“frustrat[ing] both the States’ sovereign power to punish
offenders and their good-faith attempts to honor constitutional
rights.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011)
(internal quotation marks omitted). By contrast, a habeas
court’s conclusion that a federal prisoner may claim section
2255(f)(3)’s benefit implicates none of the federalism concerns
raised by section 2254(d)(1). Accordingly, we decline to
construe section 2255(f)(3) as imposing nearly as demanding a
test as section 2254(d)(1).
In rejecting the interpretation of section 2255(f)(3) we
adopt here, the district court sounded its concern about “the
ease with which a defendant could bypass § 2255’s one-year
limitations period” by merely “hitch[ing] his claim for relief to
a recent Supreme Court holding.” Arrington, 2019 WL
4644381, at *4. We take seriously that concern, but “[o]ur
charge is to give effect to the law Congress enacted.” Lewis v.
City of Chicago, 560 U.S. 205, 217 (2010). If the statute
Congress enacted allows a petition like Arrington’s to proceed
as timely, and “that effect was unintended, it is a problem for
Congress, not one that federal courts can fix.” Id. Moreover,
any danger that petitioners will too easily force courts to skip
past the statute of limitations and consider the merits is hardly
resolved by importing that very merits analysis into the
15
timeliness inquiry. In any event, district courts are free to
summarily dismiss entirely groundless petitions on the merits,
even if such petitions do—perhaps mistakenly or
disingenuously—assert a recently recognized right. See United
States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996) (“A
judge need not conduct an evidentiary hearing before denying
a petition for relief under § 2255 when the motion and the files
and records of the case conclusively show that the prisoner is
entitled to no relief. . . . [I]f it plainly appears from the face of
the motion and any annexed exhibits and the prior proceedings
in the case that the movant is not entitled to relief in the district
court, the judge shall make an order for its summary dismissal.”
(internal quotation marks omitted)).
Given the foregoing, we are persuaded that Arrington’s
petition satisfies section 2255(f)(3). Johnson recognized a
person’s right not to have his sentence dictated by the
unconstitutionally vague language contained in the mandatory
residual clause, and Arrington asserts that right here. Whether
Arrington is correct that the right renders his sentence
unconstitutional, and whether Johnson dictates that outcome,
are separate questions irrelevant to the timeliness inquiry. Nor
need we consider whether, on our interpretation, “asserting” a
right might still require a petitioner to draw some minimum,
rational connection between his claim and the right he asserts;
the issue is unbriefed and Arrington’s petition plainly states at
least a plausible case for applying Johnson.
We recognize that in reaching our conclusion, we are
departing from the approach taken by several of our sister
circuits. See Raybon v. United States, 867 F.3d 625 (6th Cir.
2017); United States v. Brown, 868 F.3d 297 (4th Cir. 2017);
Greer, 881 F.3d 1241; United States v. Green, 898 F.3d 315(3d Cir. 2018); Russo v. United States, 902 F.3d 880 (8th Cir.
2018); United States v. Blackstone, 903 F.3d 1020 (9th Cir.
16
2018); United States v. London, 937 F.3d 502 (5th Cir. 2019);
Nunez v. United States, 954 F.3d 465 (2d Cir. 2020); see also
Shea, 976 F.3d at 71 (concluding that “Johnson establishes
beyond reasonable debate that the pre-Booker Guidelines’
residual clause was too vague to constitutionally enhance a
defendant’s sentence”); but see Cross, 892 F.3d at 293–94. But
those courts have, with some exceptions, largely elided the key
interpretive questions we address today: the level of generality
at which we should understand the right recognized in Johnson,
and what exactly section 2255 requires of a petitioner to
“assert” such a right. In any event, “[i]t is hardly unusual for
. . . this court of appeals[] to disagree with [its] sister circuits.”
Holland v. Williams Mountain Coal Co., 496 F.3d 670, 674
(D.C. Cir. 2007).
Because the district court concluded that Arrington’s
petition was untimely, it never considered whether his petition
was otherwise procedurally barred or whether it could succeed
on the merits. Though the government urges us to address those
matters in the first instance, we decline that invitation. See
Capitol Services Management, Inc. v. Vesta Corporation, 933
F.3d 784, 789 (D.C. Cir. 2019) (“As an appellate court, we are
a court of review, not of first view.” (cleaned up)).
III.
For the foregoing reasons, we reverse the district court’s
order denying Arrington’s section 2255 motion as untimely and
remand for further proceedings consistent with this opinion.
So ordered.
WALKER, Circuit Judge, dissenting:
In Johnson v. United States the Supreme Court held that
the violent-felony residual clause of the Armed Career
Criminal Act is unconstitutionally vague.1 According to
Derrek Arrington, Johnson recognized a right that invalidates
the crime-of-violence residual clause of the mandatory
Sentencing Guidelines. If it did, his otherwise untimely § 2255
motion for post-conviction relief is timely. But because it did
not, his motion should be dismissed.
I
“In April 2000, Derrek Arrington dragged one U.S. Park
policeman through an intersection with his automobile and shot
another in the face at close range, permanently disfiguring
him.”2 A federal jury convicted him of assaulting, resisting, or
impeding a federal officer with a dangerous weapon (his car)
and unlawful possession of a firearm by a convicted felon.3 At
sentencing — before United States v. Booker made the United
States Sentencing Guidelines advisory4 — the district court
found that Arrington had two prior convictions for a “crime of
violence” as defined by the residual clause of the then-
mandatory Sentencing Guidelines.5
Absent that finding, Arrington’s Sentencing Guidelines
range would have run from 14 years to 17.5 years. Instead, his
Sentencing Guidelines range started at 17.5 years and
continued until capped by the combined statutory maximum of
20 years.
1
576 U.S. 591, 597 (2015).
2
United States v. Arrington, No. 1:00-cr-159, July 9, 2009
Memorandum Order, DN 125 at pg. 1.
3
Id.
4
543 U.S. 220, 245 (2005).
5
United States Sentencing Guidelines § 4B1.2(a)(2).
2
In 2001, the district court sentenced Arrington to 20 years
in prison. This court affirmed Arrington’s conviction and
sentence.6
After Arrington’s judgment became final, he attempted to
relitigate his case. In 2003, he filed his first 28 U.S.C. § 2255
motion for post-conviction relief.7 In 2005, he petitioned this
court for mandamus relief.8 In 2007, he moved to alter or
amend the denial of his § 2255 motion and alternatively to
amend his § 2255 motion.9 In 2008, he appealed the district
court’s dismissal of his § 2255 motion and his 2007 motion.10
In 2009, he moved to correct an allegedly illegal sentence,11
moved for a writ of audita querela,12 moved to reopen his
previous § 2255 motion,13 and appealed the district court’s
denial of his writ of audita querela.14 In 2010, he moved for a
reduction of his sentence.15 In 2011, he appealed the denial of
that motion16 and filed four motions to attack his original
judgment.17 In 2012, he moved to review his sentence,18
6
See United States v. Arrington, 309 F.3d 40 (D.C. Cir. 2002), cert.
denied, 537 U.S. 1241 (2003).
7
Motion denied. See United States v. Arrington, No. 1:00-cr-159,
DN 110.
8
Petition denied. See id. at DN 102.
9
Motion denied. See id. at DN 114.
10
Appeal dismissed for lack of a certificate of appealability. See id.at DN 120.
11
Motion denied. See id. at DN 122.
12
Motion denied. See id. at DN 125.
13
Motion denied. See id. at July 16, 2009 Minute Order.
14
Denial affirmed. See id. at DN 130.
15
Motion denied. See id. at DN 132.
16
Appeal dismissed upon Appellant’s motion to withdraw. See id.at DN 136.
17
Motions denied. See id. at DN 138; DN 144; DN 166.
18
Motion denied. See id. at DN 166.
3
petitioned this court for mandamus relief,19 and later appealed
the district court’s denials of his 2011 motions.20
That brings us to Arrington’s latest § 2255 motion.
In 2015, in Johnson v. United States, the Supreme Court
struck down the violent-felony residual clause of the Armed
Career Criminal Act as unconstitutionally vague.21 The Court
later declared Johnson retroactively applicable.22
Within a year of Johnson, Arrington petitioned to file a
successive § 2255 motion — his 18th of the post-conviction
petitions, motions, and appeals listed above. Citing
§ 2255(f)(3) — which requires a movant to “assert[]” a right
“newly recognized by the Supreme Court” — he argued
Johnson made possible a § 2255 motion that would otherwise
be time barred.23
This court granted Arrington’s petition without deciding
whether he could satisfy the requirements of § 2255(f)(3).24 He
19
Petition denied. See id. at DN 167.
20
Appeal dismissed as to the Rule 60(b) motion and denial of the
Rule 36 motion affirmed. See id. at DN 172.
21
576 U.S. 591, 597.
22
Welch v. United States, 136 S. Ct. 1257, 1265 (2016).
23
28 U.S.C. § 2255(f)(3) (a movant may file a § 2255 motion within
one year of “the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review”).
24
In re Derrek Arrington, No. 16-3020, June 15, 2016 Per Curiam
Order (certifying that Arrington made the “prima facie showing”
required for filing in the district court); cf. In re Williams, 759 F.3d
66, 70 (D.C. Cir. 2014) (“our inquiry is limited to whether Williams’
4
subsequently filed his successive § 2255 motion in district
court, asserting that the crime-of-violence residual clause of the
mandatory Sentencing Guidelines is unconstitutionally vague
because it is identically worded to the residual clause Johnson
struck down.
After Arrington filed his successive § 2255 motion, but
before the district court ruled on it, the Supreme Court decided
Beckles v. United States.25 It clarified the limited scope of
Johnson’s invalidation of the Armed Career Criminal Act’s
violent-felony residual clause by holding that “the advisory
Guidelines are not subject to vagueness challenges under the
Due Process Clause.”26
Beckles reasoned that the advisory Sentencing Guidelines
“do not regulate the public.”27 Instead, they “advise sentencing
courts how to exercise their discretion within the bounds
established by Congress.”28 Moreover, our current “system of
guided discretion” cannot be unconstitutionally vague because
the pre-Guidelines “system of unfettered discretion” was not
unconstitutionally vague.29 That “system of unfettered
discretion” was (a) undoubtedly constitutional and (b) far
vaguer than even the vaguest Guidelines.30
After “the Beckles Court made clear that the right
announced in Johnson did not automatically apply to all
motion has made a prima facie case”); United States v. Brown, 868
F.3d 297, 303-04 (4th Cir. 2017).
25
137 S. Ct. 886 (2017).
26
Id. at 890.
27
Id. at 895.
28
Id.
29Id. at 894.
30
Id.
5
similarly worded residual clauses,”31 the district court
dismissed as untimely Arrington’s successive § 2255 motion.32
The district court explained that Johnson had not
“‘recognized’” “‘the right asserted’” by Arrington not to have
his sentence fixed by an unconstitutionally vague residual
clause.33
Arrington appealed. We have jurisdiction, and our review
is de novo.34
II
In passing the Antiterrorism and Effective Death Penalty
Act of 1996,35 “Congress imposed for the first time a fixed time
limit for collateral attacks in federal court on a judgment of
conviction.”36 Under AEDPA, a one-year statute of limitations
for § 2255 motions runs from the latest of four possible dates.37
That date is usually “the date on which the judgment of
conviction becomes final,” which for Arrington was two
decades ago.38
31
Brown, 868 F.3d at 302.
32
United States v. Arrington, No. 1:00-cr-159, 2019 WL 4644381, at
*4 (D.D.C. Sept. 24, 2019).
33
Id. at *10 (quoting 28 U.S.C. § 2255(f)(3)).
34
28 U.S.C. § 2253; United States v. Palmer, 296 F.3d 1135, 1141
(D.C. Cir. 2002).
35
Pub. L. No. 104-132, 110 Stat. 1214.
36
Mayle v. Felix, 545 U.S. 644, 654 (2005).
37
Pub. L. No. 104-132, 110 Stat. 1214, 1220 (codified at 28 U.S.C.
§ 2255).
38
28 U.S.C. § 2255(f)(1). A conviction becomes final when the
Supreme Court “affirms a conviction on the merits on direct review
or denies a petition for a writ of certiorari, or when the time for filing
a certiorari petition expires.” Clay v. United States, 537 U.S. 522,
527 (2003).
6
Arrington claims a later date applies. Under § 2255(f)(3),
if a movant asserts a right newly recognized by the Supreme
Court, his one-year deadline runs from “the date on which the
right asserted was initially recognized by the Supreme Court,
if that right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review.”39
Like other provisions of AEDPA, § 2255(f)(3) ties judges’
hands. It forbids relief that requires expanding existing
Supreme Court precedent. It thereby precludes the kind of
legal reasoning judges otherwise do every day.40
Since AEDPA’s enactment, the Supreme Court has
frequently — and often summarily — reversed circuit courts
that stray from the lane AEDPA assigns them.41 It has warned
39
More specifically, the timer starts on the day the Supreme Court
initially recognizes the right asserted. See Dodd v. United States, 545
U.S. 353, 357 (2005).
40
See United States v. Blackstone, 903 F.3d 1020, 1026 (9th Cir.
2018) (“We are regularly called upon to apply and extend Supreme
Court holdings to different contexts, of course, but AEDPA
expressly limits our ability to do that here.”); see also United States
v. Greer, 881 F.3d 1241, 1247 (10th Cir. 2018) (“While circuit courts
can apply the reasoning of Johnson to support a finding that the
residual clause of similarly worded statutes are unconstitutionally
vague on direct appeal, our review under AEDPA is more limited.
AEDPA limits federal habeas relief to new constitutional rights
recognized by the Supreme Court.”).
41
See, e.g., Shoop v. Hill, 139 S. Ct. 504 (2019) (summary reversal);
Virginia v. LeBlanc, 137 S. Ct. 1726 (2017) (summary reversal);
Kernan v. Cuero, 138 S. Ct. 4 (2017) (summary reversal); Dunn v.
Madison, 138 S. Ct. 9 (2017) (summary reversal); Woods v. Donald,
575 U.S. 312 (2015) (summary reversal); White v. Woodall, 572 U.S.
415 (2014); Lopez v. Smith, 574 U.S. 1 (2014) (summary reversal);
7
courts — over and over again — “not to advance on [their]
own in determining what rights have been recognized by the
Supreme Court under AEDPA.”42 It specifically “has
admonished lower courts ‘against framing [its] precedents
at . . . a high level of generality’ in reviewing claims under the
Antiterrorism and Effective Death Penalty Act.”43
To be sure, as a general matter, the Supreme Court’s
AEDPA reversals often concern § 2254(d)(1), rather than
§ 2255(f)(3).44 Section 2254(d)(1) precludes federal relief for
Glebe v. Frost, 574 U.S. 21 (2014) (summary reversal); Metrish v.
Lancaster, 569 U.S. 351 (2013); Nevada v. Jackson, 569 U.S. 505(2013) (summary reversal); Howes v. Fields, 565 U.S. 499 (2012);
Parker v. Matthews, 567 U.S. 37 (2012) (summary reversal); Premo
v. Moore, 562 U.S. 115 (2011); Cullen v. Pinholster, 563 U.S. 170(2011); Bobby v. Mitts, 563 U.S. 395 (2011) (summary reversal);
Hardy v. Cross, 565 U.S. 65 (2011) (summary reversal); Berghuis v.
Smith, 559 U.S. 314 (2010); Renico v. Lett, 559 U.S. 766 (2010);
Waddington v. Sarausad, 555 U.S. 179 (2009); Knowles v.
Mirzayance, 556 U.S. 111 (2009); Schriro v. Landrigan, 550 U.S.
465 (2007); Uttecht v. Brown, 551 U.S. 1 (2007); Schriro v.
Landrigan, 550 U.S. 465 (2007); Carey v. Musladin, 549 U.S. 70(2006); Brown v. Payton, 544 U.S. 133 (2005); Yarborough v.
Alvarado, 541 U.S. 652 (2004); Lockyer v. Andrade, 538 U.S. 63(2003); Mitchell v. Esparza, 540 U.S. 12 (2003) (summary reversal);
Early v. Packer, 537 U.S. 3 (2002) (summary reversal).
42
Blackstone, 903 F.3d at 1026 (citing Lopez v. Smith, 574 U.S. 1, 6
(2014)); see also Recent Case: Criminal Law – Federal Habeas
Review Under AEDPA – Sixth Circuit Interprets “Clearly
Established Federal Law” Narrowly, 126 HARV. L. REV. 860, 867
(2013) (“the Supreme Court’s aggressively enforced AEDPA
message” is “defer, or prepare to be reversed”).
43
Nunez v. United States, 954 F.3d 465, 469 (2nd Cir. 2020) (quoting
Lopez v. Smith, 574 U.S. 1, 4, 6 (2014) (internal quotation marks and
citation omitted); Nevada v. Jackson, 569 U.S. 505, 512 (2013)).
44
See note 41.
8
state prisoners unless they attack a state-court “decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.”45 But even though § 2254(d)(1) is
not a time bar like § 2255(f)(3), the latter “requires courts to
consider whether the right a petitioner asserts has been
recognized by the Supreme Court as part and parcel of deciding
whether a petition is timely.”46
In that way, the two provisions include similar inquiries.
There is at most a modest distinction between “clearly
established Federal law, as determined by the Supreme
Court” (§ 2254(d)(1)) and a “right . . . newly recognized by
the Supreme Court” (§ 2255(f)(3)).47 Because the Supreme
Court’s word is final, it has “recognized” a right when — and
perhaps only when — it has “clearly established” a right.48
As for “recognize,” it means “(1) ‘to acknowledge it
formally’ or (2) ‘to acknowledge or take notice of [it] in some
definite way.’ Thus, a Supreme Court case has ‘recognized’ an
45
28 U.S.C. § 2254(d)(1).
46
Nunez, 954 F.3d at 471.
47
Section 2254(d)(1) has two somewhat separate inquiries: whether
a state court decision is “contrary to . . . clearly established Federal
law, as determined by the Supreme Court” and whether a state court
decision “involved an unreasonable application of . . . clearly
established Federal law, as determined by the Supreme Court.”
Because the Supreme Court has admonished lower courts against
advancing on their own in “contrary to” cases, not just “unreasonable
application” cases, those admonishments are germane to
§ 2254(f)(3)’s inquiry, even if § 2255(f)(3) is more like the first of
§ 2254(d)(1)’s inquiries than its second.
48
See Williams v. Taylor, 529 U.S. 362, 412 (2000) (“‘clearly
established Federal law, as determined by [the Supreme] Court’”
means the Supreme Court’s “holdings, as opposed to [] dicta”).
9
asserted right within the meaning of § 2255(f)(3) if it has
formally acknowledged that right in a definite way.”49 So “if
the existence of a right remains an open question as a matter of
Supreme Court precedent, then the Supreme Court has not
‘recognized’ that right.”50
III
Arrington’s successive § 2255 motion should be dismissed
because Johnson did not recognize the right he asserts. At
most, Johnson recognized a right that is useless to
Arrington — a right not to be sentenced under statutes with
residual clauses phrased like the Armed Career Criminal
Act’s.51 In contrast, Johnson left as an open question the only
49
United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017) (quoting
Recognize, Merriam-Webster Tenth Collegiate Dictionary 976
(1996)).
50
Id. (citing Tyler v. Cain, 533 U.S. 656, 662-64 (2001)); see also
Raybon v. United States, 867 F.3d 625, 630 (6th Cir. 2017)
(“Because it is an open question, it is not a ‘right’ that ‘has been
newly recognized by the Supreme Court’ let alone one that was
‘made retroactively applicable to cases on collateral review.’”)
(citing § 2255(f)(3); Tyler v. Cain, 533 U.S. 656, 663-64 (2001), as
“holding that ‘made’ means ‘held’ under identical language in
§ 2244(b)(2)(A) and that it must be held retroactive by the Supreme
Court.”).
51
See United States v. Green, 898 F.3d 315, 321 (3rd Cir. 2018)
(“The Supreme Court in Johnson recognized a right to not be
sentenced under a statute that ‘fixed—in an impermissibly vague
way—a higher range of sentences for certain defendants.’”) (quoting
Beckles v. United States, 137 S. Ct. 886, 892 (2017)).
Arguably, because “Johnson by its own terms addresses only the
ACCA,” it recognized an even narrower right — a right “specific to
the residual clause of the ACCA.” Nunez v. United States, 954 F.3d
10right Arrington can assert to obtain post-conviction relief — a
purported right not to be sentenced under the allegedly
unconstitutional crime-of-violence residual clause of the
mandatory Sentencing Guidelines.52
For starters, Johnson does not discuss the crime-of-
violence residual clause of the mandatory Sentencing
Guidelines. In fact, it does not mention the Sentencing
Guidelines at all.53 “Instead, the Court’s decisions up until this
point evince a distinction between statutes that fix sentences
and Guidelines that attempt to constrain the discretion of
sentencing judges.”54
That distinction was dispositive in Beckles v. United
States.55 Before Beckles, many courts thought Johnson’s
reasoning might extend to the advisory Sentencing
465, 470 (2nd Cir. 2020); id. (“the Court has considered challenges
to identical residual clauses in other statutes piecemeal”) (citing
Sessions v. Dimaya, 138 S. Ct. 1204 (2018); United States v. Davis,
139 S. Ct. 2319 (2019)); see also United States v. Greer, 881 F.3d
1241, 1248 (10th Cir. 2018) (“the only right recognized by the
Supreme Court in Johnson was a defendant’s right not to have his
sentence increased under the residual clause of the ACCA”). But
here we need not decide whether Johnson’s holding is that narrow,
and I express no opinion on it.
52
United States Sentencing Guidelines § 4B1.2(a)(2).
53
See United States v. Brown, 868 F.3d 297, 302 (4th Cir. 2017)
(“Johnson did not discuss the mandatory Sentencing Guidelines’
residual clause at issue here or residual clauses in other versions of
the Sentencing Guidelines.”); United States v. Blackstone, 903 F.3d
1020, 1026 (9th Cir. 2018) (“Neither Johnson nor Welch mentioned
the mandatory or advisory Sentencing Guidelines.”).
54
United States v. London, 937 F.3d 502, 507 (5th Cir. 2019).
55
137 S. Ct. 886 (2017).
11
Guidelines.56 But Beckles clarified that Johnson was far more
limited.57 Neither Johnson nor any other Supreme Court
precedent recognizes “a broad right invalidating all residual
clauses as void for vagueness simply because they exhibit
wording similar to ACCA’s residual clause.”58 In the context
of the mandatory Sentencing Guidelines, that right “remains an
open question.”59
Otherwise, Beckles would not have “explicitly and
repeatedly stated that the Court was not addressing the pre-
Booker, mandatory Guidelines scheme.”60 It would not have
“carefully crafted its holding to avoid deciding whether the
logic of Johnson applied outside the context of ACCA.”61 And
Justice Sotomayor would not have said Beckles “leaves open
the question whether defendants sentenced to terms of
56
Ten circuit courts held it, assumed it, or accepted the Department
of Justice’s concession of it. See United States v. Fields, 823 F.3d
20, 33 (1st Cir. 2016); United States v. Maldonado, 636 F. App’x
807, 810 (2nd Cir. 2016); United States v. Townsend, 638 F. App’x
172, 177-78 (3rd Cir. 2015); United States v. Frazier, 621 F. App’x
166, 168 (4th Cir. 2015); United States v. Pawlak, 822 F.3d 902, 911
(6th Cir. 2016); Ramirez v. United States, 799 F.3d 845, 856 (7th Cir.
2015); United States v. Martinez, 821 F.3d 984, 988 (8th Cir. 2016);
United States v. Benavides, 617 F. App’x 790 (9th Cir. 2015); United
States v. Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015); United
States v. Sheffield, 832 F.3d 296, 313 (D.C. Cir. 2016). Two did not.
See In re Arnick, 826 F.3d 787, 788 (5th Cir. 2016) (opposite);
United States v. Matchett, 802 F.3d 1185, 1194-95 (11th Cir. 2015)
(same).
57
Beckles, 137 S. Ct. at 894-95.
58
Brown, 868 F.3d at 302.
59
Green, 898 F.3d at 321.
60
Raybon v. United States, 867 F.3d 625, 629 (6th Cir. 2017).
61
Brown, 868 F.3d at 302.
12
imprisonment before our decision in United States v.
Booker . . . may mount vagueness attacks on their sentences.”62
The reasoning of Beckles has led at least one circuit court
to conclude that the mandatory Sentencing Guidelines “cannot
be unconstitutionally vague because they do not establish the
illegality of any conduct.”63 On the other hand, that question
is reasonably debatable. Absent the constraints of AEDPA, a
different court might disagree.64 But that would be an
extension of Johnson. It is not dictated by Johnson.
That difference decides this case. Section 2255(f)(3)
allows Arrington’s motion only if “the right asserted” by
Arrington is “that right” which Johnson “recognized.”65 It
thereby requires Arrington to assert a right whose existence is
dictated by Johnson. It cannot be foreclosed. Nor can it even
be an open question.
Arrington cannot escape § 2255(f)(3)’s requirements by
reading into Johnson a less specific right that might be broad
enough to cover the mandatory Sentencing Guidelines. We are
not at liberty to frame Johnson’s right at “a high level of
generality.”66 In the AEDPA context, the Supreme Court
62
Beckles, 137 S. Ct. at 903 n.4 (2017) (Sotomayor, J., concurring in
the judgment).
63
In re Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016).
64
Cf. Shea v. United States, 976 F.3d 63, 80 (1st Cir. 2020) (the
residual clause of the mandatory Sentencing Guidelines is
unconstitutionally vague).
65
See Nunez, 954 F.3d at 471 (rejecting argument “that a defendant
moving for Section 2255 relief may assert any right suggested by the
Supreme Court within the past year for his motion to qualify as
timely”).
66
Lopez v. Smith, 574 U.S. 1, 6 (2014) (cleaned up).
13
requires “identification of precedent related to ‘the specific
question presented by the case.’”67
* * *
Arrington’s § 2255 motion is untimely unless the Supreme
Court recognized the right he asserts. As nine circuit courts
have held, it did not.68
Perhaps that result is unfair.69 Perhaps not.70 But AEDPA
balances fairness with finality.71
I respectfully dissent.
67
Nunez, 954 F.3d at 469 (quoting Lopez, 574 U.S. at 6) (cleaned
up).
68
Compare Nunez v. United States, 954 F.3d 465 (2nd Cir. 2020),
United States v. Green, 898 F.3d 315 (3rd Cir. 2018), United States
v. Brown, 868 F.3d 297 (4th Cir. 2017), United States v. London, 937
F.3d 502 (5th Cir. 2019), Raybon v. United States, 867 F.3d 625 (6th
Cir. 2017), Russo v. United States, 902 F.3d 880 (8th Cir. 2018),
United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018), United
States v. Greer, 881 F.3d 1241 (10th Cir. 2018), In re Griffin 823
F.3d 1350 (11th Cir. 2016), with Shea v. United States, 976 F.3d 63(1st Cir. 2020), Cross v. United States, 892 F.3d 288 (7th Cir. 2018).
69
Nunez, 954 F.3d at 472 (Pooler, J., writing separately) (“I agree
with the legal analysis and conclusion of the majority opinion, but I
write separately to emphasize the injustice our decision today
creates.”); see also Brown v. United States, 139 S. Ct. 14, 14 (2018)
(Sotomayor, J., dissenting from denial of certiorari) (“Today this
Court denies petitioners, and perhaps more than 1,000 like them, a
chance to challenge the constitutionality of their sentences.”).
70
Nunez, 954 F.3d at 472 (Raggi, J., concurring) (“I write separately
only to state that I do not share my concurring colleague’s concern
that this decision creates any ‘injustice’ for Nunez . . . .”).
71
See Mayle v. Felix, 545 U.S. 644, 662 (2005) (AEDPA “advance[s]
the finality of criminal convictions”).