A RIGHT WITHOUT A REMEDY: TIME RUNS OUT BEFORE THE RIGHT TO FILE ACCRUES FOR SUCCESSIVE HABEAS CORPUS PETITIONERS.

• Author: Chiapperini, Agnieszka

1. INTRODUCTION: FAIRNESS IN HABEAS CORPUS RELIEF

   "An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: 'The United States wins its point whenever justice is done its citizens in the courts.'" (1) The importance that finality of convictions has on our society comes only second to ensuring that those who were convicted and sentenced were treated fairly. (2) The availability of post-conviction relief to prisoners is a vital function of our criminal justice system, not as a means of "loopholes" criminals can use to be set free, but to ensure that all of our citizens are treated justly and within the bounds of our Constitution. (3)

   "[W]hen is it fair to give defendants whose cases were settled long ago the benefit of a new Supreme Court decision, versus when is it fair... to leave old cases 'final' even when the law changes later on constitutional grounds?" (4) This Comment discusses the conflicting policies that surround the availability of habeas corpus relief to federal prisoners. First, this Comment will provide a brief background of habeas corpus, its governing statute of limitations, and the retroactivity requirement as interpreted by the Supreme Court. (5) Second, this Comment will explain that this interpretation of the retroactivity requirement created a right without a remedy to successive habeas corpus petitioners. (6) Next, this Comment will briefly outline and then dismiss the main policy arguments that favor finality of convictions over their fairness. (7) And lastly, this Comment will propose a solution to the retroactivity problem by calling upon Congress to amend the statute in a way that will provide the relief it intended, or, in the alternative, by asking the Supreme Court to allow successive habeas corpus petitions to be equitably tolled until the Supreme Court expressly decides whether each new rule of law is applicable retroactively to cases on collateral review. (8)

2. BACKGROUND: HABEAS CORPUS, [section]2255, AND TIMELINESS

   1. QUICK OVERVIEW OF THE HABEAS CORPUS PROCEDURE

      The writ of habeas corpus, from the Latin meaning "that you have the body" (9) and known as the Great Writ of Liberty, (10) is a longstanding practice ratified by Congress into a federal statute by which the legal authority under which a person was imprisoned, convicted, or sentenced can be challenged. (11) Once a federal defendant is convicted and sentenced, he or she can then use this writ to file a petition requesting the court to review the circumstances surrounding his or her incarceration to ensure that neither the conviction nor sentence violate his or her constitutional rights. (12) This type of post-conviction appellate (13) procedure is an essential right recognized by the United States Constitution (14) to give prisoners relief from serving illegal sentences. (15) Although appellate in nature, the "writ of habeas corpus is not a proceeding in the original criminal prosecution, but an independent civil suit" (16) that "does not afford 'direct' (17) appellate, but only 'collateral,' (18) review of the legality of criminal judgments." (19) These procedural actions do not substantively challenge a person's guilt or innocence. (20) Determination of guilt is not the focus of habeas petitions because "constitutional rights of criminal defendants are granted to the innocent and the guilty alike." (21)

      Habeas corpus procedure for federal (22) criminal defendants is codified in 28 U.S.C. [section] 2255, which offers defendants a mechanism to collaterally challenge their unconstitutional convictions or sentences through a motion to "vacate, set aside or correct" (23) a conviction or sentence. (24) A federal defendant who wants to challenge his or her sentence post-conviction must file a habeas corpus petition under [section] 2255, but, as this is a last resort procedure, he or she must first exhaust all direct appellate remedies. (25) A direct appeal is the first step in challenging a conviction and offers the most avenues for relief. (26) A defendant must file his or her direct appeal within fourteen days of the final judgment of conviction. (27)

   2. EXHAUSTION OF APPELLATE REMEDIES BEFORE FILING

      Generally, a defendant should not file a [section] 2255 petition until after he or she has exhausted all appellate remedies. (28) As a [section] 2255 petition and a direct appeal brought by the same defendant should not be pending at the same time, district courts will often dismiss without prejudice (29) any [section] 2255 motion filed while a direct appeal is ongoing. (30) Disposition of the direct appeal could render the [section] 2255 petition moot; therefore, dismissal avoids potential conflict and furthers judicial efficiency. (31)

   3. TIMELINESS OF [section]2255 HABEAS CORPUS PETITIONS FOR UNCONSTITUTIONAL SENTENCES

      A court may deny or dismiss a [section] 2255 petition for various reasons notwithstanding the merits of the claim, including the petitioner's failure to file the claim within the one-year statute of limitations, which runs from the latest of four determining dates. (32) Section 2255(f)(3) states, in relevant part, that a "[one]-year period of limitation... shall run 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." (33) For the first habeas petition, three other triggering dates for filing a claim are available, (34) but a second or successive petition must satisfy a more burdensome threshold. (35) Availability of relief for second or successive petitions is limited because the only other existing remedy is substantive in nature and requires the federal defendant to introduce new evidence that will prove his or her actual innocence. (36)

      A successive petitioner's ability to invoke [section] 2255(f)(3) as his or her basis for relief hangs on two separate, but equally important, conditions: (1) the right must be newly recognized by the Supreme Court, and (2) the new rights must be made retroactively applicable to cases on collateral review. (37) Although a newly recognized constitutional right starts a new limitation period for second or successive petitioners, (38) the Supreme Court, not lower courts, must hold that this right applies retroactively to cases on collateral review before they can seek relief. (39) Further, this one-year limitation period runs from the date on which the Supreme Court initially recognized the right, not from the date on which that right was subsequently made retroactively applicable to cases on collateral review. (40)

   4. [section]2255(F)(3) TIME LIMITATION AND RETROACTIVITY EXEMPLIFIED IN JOHNSON V. UNITED STATES AND WELCH V. UNITED STATES

      This two-condition requirement can be first illustrated through the recent ruling in Johnson v. United States. (41) On June 26, 2015, the Supreme Court held that the residual clause (42) of the Armed Career Criminal Act ("ACCA"), (43) which provides for enhanced sentences to repeat criminal offenders upon being convicted in federal court of possession of a firearm, (44) was unconstitutionally vague. (45) Any person previously sentenced under this clause of the ACCA could now seek resentencing or release (46) by filing a [section] 2255 petition because Johnson created a newly recognized constitutional right that was previously unavailable. (47) However, the Supreme Court in Johnson did not expressly hold whether this rule was applicable retroactively. (48) Lower courts struggled with Johnson's retroactive application to cases on collateral review resulting in a major circuit split, with some courts granting successive habeas petitions and others denying them. (49)

      As a result, on April 18, 2016, the Supreme Court issued a decision in Welch v. United States, which expressly held Johnson's rule retroactively applicable to cases on collateral review. (50) The Supreme Court made this determination based on a finding that the rule in Johnson is substantive (51) in nature, thus falling outside of the general bar to retroactivity. (52)

      Based on the combined decisions in Johnson and Welch, the two conditions imposed by [section] 2255(f)(3) were met. (53) Courts use the date of the Johnson decision, not the Welch decision, to calculate the time from which the statute of limitations under [section] 2255(f)(3) begins to run. (54) At this point, federal criminal defendants sentenced under the now unconstitutional residual clause of the ACCA had two more months to confidently file their [section] 2255 petitions seeking release or resentencing under Johnson without being time-barred. (55)

   5. DEVELOPMENT OF [section] 2255(F)(3)'S RETROACTIVITY REQUIREMENT

      Petitioners have to file their claims within one year from the date on which the Supreme Court announces a new rule, changes an existing rule, or voids a rule on the grounds that it is unconstitutional. (56) However, successive [section] 2255(f)(3) petitions will fail unless the rule under which the petitioners seek relief is also one that can be applied retroactively to their cases. (57) Generally, new rules of law are not available to those whose cases concluded before the rule is recognized. (58) But some rules are subject to a finding of retroactivity, which, if found, allows a habeas corpus petitioner to invoke the new rule to challenge the legality of his or her sentence or conviction. (59) A court of appeals is tasked with answering the question of whether a new rule has already been "made retroactive to cases on collateral review by the Supreme Court" as a prerequisite for authorizing a successive petition under [section] 2255. (60)

      The Supreme Court can choose which cases to hear at its discretion; therefore, not every defendant's question about a new rule's retroactivity will end in a Supreme Court ruling as required by [section] 2255's conditions for successive...