Using 28 U.S.C. § 2241 To Challenge an ACCA Sentence

Attorney Catherine E. White
Phone: 608-257-0945

A federal conviction for being in unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g), usually carries a 10-year maximum sentence. But under the Armed Career Criminal Act (ACCA), the defendant is instead subject to a 15-year mandatory minimum sentence, with a maximum possible sentence of life, if he or she has three or more prior convictions for a “violent felony” or “serious drug offense.” 18 U.S. Code § 924(e)(1).

Because the ACCA imposes such a harsh penalty, there has been a great deal of litigation concerning what prior convictions may qualify as violent felonies and serious drug offenses. A string of Supreme Court opinions has considerably narrowed the application of the ACCA.[1] The opinion with the arguably largest effect on the ACCA is Samuel Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Court ruled one portion of the ACCA’s violent-felony definition, known as the “residual clause,” unconstitutional. As a result of Johnson, prisoners who were originally sentenced under the ACCA because one or more of their prior convictions qualified as a violent felony under the residual clause have been able to obtain resentencing without the ACCA enhancement because their ACCA sentences were imposed in violation of the constitution.

A petition for post-conviction relief under 28 U.S. Code § 2255 is usually the proper vehicle to challenge an unconstitutional ACCA sentence under Johnson. Section 2255 ostensibly allows sentencing courts to vacate, set aside, or correct a sentence that imposed within jurisdiction, in violation of the Constitution or federal law, or “is otherwise subject to collateral attack.” § 2255(a). Unfortunately, Congress has made it very difficult for prisoners to obtain relief under § 2255. Among other things, § 2255 limits criminal defendants to one petition for post-conviction relief, which must be filed within one year of the date on which their conviction is finalized. There are a few exceptions, one of which is that a court of appeals may “certify” a second or successive § 2255 petition, and therefore allow the petition to be filed in the district court, if it “contains” “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” § 2255(h)(2).

A petition based on Johnson qualifies for this exception.[2] But a petition based on any of the Supreme Court’s decisions interpreting the statutory language of the ACCA doesn’t qualify because those decisions don’t announce new rules of constitutional law. Unfortunately, the circuits disagree about how to determine whether a petition is actually based on Johnson’s voiding of the residual clause. In some circuits—including the Fourth and Ninth—the prisoner need only show that the residual clause “may have” led the sentencing court to apply the ACCA.[3] In other circuits—including the First, Eighth, Tenth, and Eleventh—the prisoner must show that it is more likely than not that the residual clause led the sentencing court to apply the ACCA.[4] The difference between these two standards may seem inconsequential, but in fact it is not at all unusual for a prisoner to have one or more prior convictions that “may have” qualified as a violent felony under the residual clause at the time of sentencing but also “may have” qualified under another clause—before Johnson, courts generally didn’t undergo a clause-by-clause analysis for each predicate offense because the residual clause operated as a catch-all. Even though the prior convictions now indisputably do not qualify as violent felonies under any clause, such a prisoner will be denied relief and forced to serve out his ACCA sentence if he was sentenced in, say, North Dakota; but he will be granted relief and released from prison after 10 years if he was sentenced in, say, Montana.

But there may still be some hope for those prisoners sentenced in the First, Eighth, Tenth, and Eleventh Circuits: the general federal habeas corpus statute, 28 U.S. Code § 2241. Unlike a § 2255 petition, which must be filed in the district court in which the prisoner was sentenced, a § 2241 petition must be filed in the district court in which the prisoner is currently incarcerated. Generally, federal prisoners are confined to § 2255 petitions. But a district court may grant relief under § 2241 if § 2255 is “inadequate or ineffective to test the legality of [the prisoner’s] detention.” § 2255(e). Once again, the circuits are split about how to interpret this language, known as the “savings clause.” Some circuits recognize §2241 as a valid procedural vehicle for a prisoner to challenge his ACCA sentence under a new and retroactive Supreme Court statutory-interpretation decision; some don’t.[5]

The Seventh Circuit is among the circuits that allow § 2241 petitions based on statutory-interpretation cases. Earlier this month, it affirmed a district court’s grant of relief under § 2241 to a prisoner who no longer qualifies for the ACCA but who was denied § 2255 relief in the Eighth Circuit, where he was originally sentenced.[6] The district court and the Seventh Circuit agreed that because of several of the Supreme Court’s ACCA decisions, including Mathis and Samuel Johnson, the prisoner no longer had three predicate offenses under the ACCA. And they agreed that § 2255 was inadequate or ineffective to test the legality of the prisoner’s detention because Eighth Circuit precedent foreclosed his § 2255 claim. Therefore, § 2241 could provide relief. It would appear that other prisoners sentenced under the ACCA and currently incarcerated within the Seventh Circuit whose § 2255 petitions have been unsuccessful might be eligible for relief under § 2241.

[1] See, e.g., Quarles v. United States, 139 S. Ct. 1872 (2019); Stokeling v. United States, 139 S. Ct. 544 (2019); United States v. Stitt, 139 S. Ct. 399 (2018); Mathis v. United States, 136 S. Ct. 2243 (2016); Descamps v. United States, 570 U.S. 254 (2013); Curtis Johnson v. United States, 599 U.S. 133 (2010); Shepard v. United States, 544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575 (1990). The Supreme Court will hear argument in yet another ACCA case, Shular v. United States, No. 18-6662, in the upcoming October 2019 term.

[2] See Welch v. United States, 136 S. Ct. 1257, 1264–65 (2016).

[3] See, e.g., United States v. Geozos, 870 F.3d 890 (9th Cir. 2017).

[4] See Walker v. United States, 900 F.3d 1012 (8th Cir. 2018).

[5] See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1084–85 (11th Cir. 2017) (en banc).

[6] Chazen v. Marske, No. 18-3268 (7th Cir. Sept. 9, 2019).

Return to Case Results
Return to Criminal Defense page