Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Since Johnson was decided six months ago, courts have been sorting out which of the currently incarcerated defendants who were sentenced under ACCA’s residual clause may be resentenced. Determining who can be resentenced in light of Johnson requires courts to answer several questions. For example, does the rule in Johnson apply retroactively to convictions that have already become final? And can prisoners who have already filed one petition for postconviction review—review that occurs after a defendant’s conviction has become final— file another, successive petition for postconviction review based on Johnson? This second question has divided the courts of appeals. It also requires the Supreme Court’s immediate and exceptional attention. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a prisoner may file a successive petition for postconviction review only when a court of appeals panel certifies that the petition involves “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” Less than six months after Johnson, over half the courts of appeals disagree about whether the Supreme Court has “made” Johnson retroactive and thus whether a prisoner may file a successive petition for postconviction review based on Johnson.
Leah M. Litman,
The Exceptional Circumstances of Johnson v. United States,
Mich. L. Rev. First Impressions
Available at: http://repository.law.umich.edu/mlr_fi/vol114/iss1/4