Possible Reliance: Protecting Legally Innocent Johnson Claimants.

• Author: Potts, Keagan

The writ of habeas corpus presents the last chance for innocent defendants to obtain relief from invalid convictions and sentences. The writ constitutes a limited exception to the finality of judgments. Given the role finality plays in conserving judicial resources and deterring criminal conduct, exceptions created by habeas must be principally circumscribed. Since the Supreme Court's invalidation of the Armed Career Criminal Act's residual clause in Johnson v. United States, the federal courts of appeals have attempted to develop a test that protects the writ from abuse by Johnson claimants.

This Note first contributes a new understanding of the resulting circuit split. Currently, circuits construe the split to be about a Johnson petitioner's burden of proof at the jurisdictional stage. However, circuits actually disagree on the standard a petitioner must meet to establish the court's subject-matter jurisdiction. This Note identifies two standards. The sole-reliance standard requires petitioners to show that the sentencing court relied solely on the residual clause, while the possible-reliance standard requires petitioners to show that the court may have relied on the residual clause. Both standards must be shown by a preponderance of the evidence. This Note then deploys this reconceptualization of the circuit split to advance new arguments in favor of imposing the possible-reliance standard at the jurisdictional stage. The possible-reliance standard protects the innocent, preserves the finality of judgments, and conforms with Supreme Court habeas jurisprudence and congressional intent expressed in the Antiterrorism and Effective Death Penalty Act.

INTRODUCTION I. HABEAS CORPUS, THE AEDPA, AND THE ACCA A. The Great Writ of Liberty B. Johnson Claims and the ACCA II. THE CIRCUIT SPLIT: THE PROBLEMS WITH PREPONDERANCE A. The Circuits' Understanding of the Split: Preponderance v. Nonpreponderance B. A Neater Distinction: Possible Reliance v. Sole Reliance III. POSSIBLE RELIANCE BALANCES INNOCENCE AND FINALITY A. Sole Reliance and Its Justification B. The Shortcomings of Sole Reliance C. The Possible-Reliance Standard Protects Innocent Johnson Claimants 1. Possible Reliance is Justified by Congressional Intent 2. Possible Reliance Comports with Supreme Court Jurisprudence 3. Possible Reliance Does Not Let Too Many Petitioners Proceed to Merits Review CONCLUSION INTRODUCTION

The writ of habeas corpus is the last chance for those convicted to establish their innocence. As such, determining whether a petitioner can access courts on the writ is a high-stakes inquiry. Granting habeas relief undermines confidence in the justice system to some degree, as it entails recognizing injustice done by institutional actors at previous stages of the proceedings. (1) At the same time, however, the potential for habeas relief stands as a testament to the justice system's commitment to integrity. It provides petitioners an opportunity to recover from injustice that occurs despite the system's best efforts. (2)

The Supreme Court's decision in Johnson v. United States has significant implications for habeas jurisprudence. (3) Samuel Johnson--the habeas claimant--was sentenced pursuant to the Armed Career Criminal Act (ACCA), which allows enhanced sentences for defendants who "ship, possess, [or] receive firearms" if they also have three or more earlier convictions for violent felonies. (4) Three clauses in the ACCA define "violent felonies," but only one, the residual cause, was at issue in Johnson. (5) The residual clause is a catchall: it identifies crimes that "otherwise involve [] conduct that presents a serious potential risk of physical injury to another" as crimes of violence. (6)

In Johnson, the Court determined that the residual clause was unconstitutionally vague in violation of the Fifth Amendment. (7) The clause failed to provide courts adequate direction in assessing when a past crime presented a substantial enough "risk of physical injury to another" to warrant an enhanced sentence. (8) Consequently, enhanced sentences of thousands of prisoners charged under the ACCA's residual clause have been called into question. (9)

Before a court may decide a habeas petition on the merits, the claimant must show that the reviewing court has proper subject-matter jurisdiction to review that petition at all. This Note addresses a circuit split regarding the showing that Johnson claimants must make to establish a court's subject-matter jurisdiction over their habeas claims. (10) So far, eight circuits have weighed in on the issue. (11) Some courts characterize the split as a disagreement about whether habeas petitioners' burden of proof is preponderance or nonpreponderance. (12)

This Note rejects that conceptualization of the split. Instead, it argues that the split is better conceptualized as a disagreement as to the evidentiary standard to which petitioners should be held. This understanding reflects the fact that all circuits require petitioners to establish the reviewing court's subject-matter jurisdiction by a preponderance of the evidence. Some circuits require petitioners to show that the sentencing court relied solely on the residual clause in assigning an enhanced sentence (the "sole-reliance" standard). (13) Others require a showing that the sentence may have relied on the residual clause (the "possible-reliance" standard). (14) Courts in the latter camp use the sole-reliance standard when they are conducting review on the merits.

This circuit split implicates themes prevalent in the broader conversation about sentencing reform. On the one hand, the split presents an opportunity to mitigate the effect long sentences have on mass incarceration. (15) Reformers argue that because the likelihood of criminality declines as an individual gets older, sentences can be shortened without putting people in danger. (16) On the other hand, antireformers point to the low success rate of habeas claims, suggesting that resources spent reviewing meritless habeas claims could be better used elsewhere. (17) Antireformers also worry that broader habeas review will inhibit the law's ability to incapacitate and deter violent criminals. (18) In light of this debate, a viable solution to this circuit split must balance innocence against the advantages traditionally attributed to finality: deterrence, incapacitation, and the conservation of judicial resources.

This Note argues that courts should ask whether a petitioner's sentence may have relied on the residual clause at the jurisdictional stage and reserve the question of whether her sentence solely relied on the residual clause for the merits stage. This allows the writ of habeas corpus to free the innocent without undermining finality. Part I provides background on habeas relief, the ACCA, and the Court's recent decisions in Johnson v. United States (19) and Welch v. United States. (20) Part II reconceptualizes the existing circuit split as a disagreement concerning different evidentiary standards rather than different evidentiary burdens. Part III identifies shortcomings of the sole-reliance standard and argues instead for adopting the possible-reliance standard. Enforcing possible reliance at the jurisdictional stage strikes the best balance between finality and innocence.

1. HABEAS CORPUS, THE AEDPA, AND THE ACCA

   Prisoners' access to habeas corpus relief has fluctuated throughout American history. (21) Section I.A locates the Antiterrorism and Effective Death Penalty Act (AEDPA), a statute that limits the availability of habeas relief, within the broader history of the writ of habeas corpus and describes its effect on the writ. (22) Section I.B discusses the ACCA and the Supreme Court's holding in Johnson v. United States, flagging the particular difficulties Johnson claimants face. (23)

   1. The Great Writ of Liberty

      Habeas is the "great writ of liberty." (24) It plays a crucial role in protecting people from arbitrary or wrongful imprisonment by providing them a means of collaterally challenging their convictions and sentences. A habeas petitioner may challenge her sentence on the grounds that her conviction (1) violates the Constitution, (2) was imposed by a court lacking jurisdiction, (3) exceeded the maximum sentence outlined by the laws, or (4) is otherwise subject to collateral attack. (25) On the merits, a petitioner generally must make one of the four aforementioned showings by a preponderance of the evidence. (26)

      Challenges to a prisoner's sentence are best understood as requests for collateral, rather than direct, review. (27) Direct review of a criminal conviction entails "review [conducted] in the 'same proceeding'" before the judgment becomes final. (28) Collateral review, as traditionally understood, constitutes a separate proceeding investigating aspects of the initial proceeding and can begin only after direct review is complete. (29) Of late, the Supreme Court and Congress have limited the availability of habeas as a vehicle for direct review, reserving it for prisoners collaterally attacking their sentences. (30) This Note focuses on Johnson as a means of collaterally attacking a sentence.

      The scope of the writ has fluctuated throughout history. (31) The past few decades have seen the writ judicially (32) and legislatively narrowed. (33) In part, this narrowing occurred in response to growing worries that guilty prisoners were using habeas corpus to escape their sentences. (34) As the federal prison population increased during the late twentieth century, so did prison litigation; much of that litigation was filed by prisoners seeking a writ of habeas corpus. (35) In 1996, Congress reacted by passing the AEDPA to eliminate nonmeritorious suits early and often. (36) However, Congress's overzealous approach risks keeping too many meritorious claims out of court. (37)

      The AEDPA aims to weed out nonmeritorious suits by erecting various procedural hurdles. Two...