Circuit Limits Reach of Recent Career Offender Decision
In McCloud v. United States, the Second Circuit (Walker, Raggi, Nardini) rejected the petitioner’s contention that a development in Circuit law following a defendant’s conviction constitutes a newly-discovered fact extending the deadline for a defendant to file a habeas petition under 28 U.S.C. § 2255. In so holding, the Second Circuit reached the same conclusion as the three other circuits to have addressed the question. It effectively limits the reach of a recent favorable decision to pending and future cases.
McCloud was sentenced in 2009 to 202 months’ imprisonment for various narcotics and firearms offenses. That sentence was driven in part by McCloud’s two prior state convictions; at the time, it was undisputed that those convictions were “controlled substance offenses” that rendered McCloud a “Career Offender” subject to a sentencing enhancement under the Sentencing Guidelines. Nearly ten years later, in United States v. Townsend, 897 F.3d 66 (2d Cir. 2018), the Second Circuit held that conviction for a certain New York state drug offense (i.e. criminal sale of a controlled substance in the fifth degree) does not qualify as a “controlled substance offense” for purposes of the Career Offender provision.
McCloud filed a petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, on the ground that, under Townsend, he was not a Career Offender because one of his prior state convictions was not for a “controlled substance offense.” A petitioner has only one year to file a § 2255 petition, but that year begins to run from the latest of four possible triggers under § 2255(f), including § 2255(f)(4), “the date on which the facts supporting the claim . . . presented could have been discovered through the exercise of due diligence.” McCloud maintained his petition was timely because the Townsend decision produced a newly discovered fact under § 2255(f)(4)—namely, notice of a judicial decision that altered the legal status of his prior conviction.
The Second Circuit rejected this argument, explaining that a fact is an “actual or alleged event or circumstance, as distinguished from its legal effect, consequence, or interpretation.” Townsend altered only the legal effect of one of McCloud’s prior convictions; the court advised that interpreting a decision as a “new fact” because of its legal implications “would create a boundless, and unwarranted, expansion of § 2255(f)(4).” Moreover, the court pointed to another trigger under § 2255(f), subsection (f)(3), which commences a new limitations period in the event of certain Supreme Court decisions that have been deemed retroactive, and maintained that this provision impliedly rejects the notion that developments in case law from decisions other than retroactive Supreme Court decisions could trigger any of the other subsections of § 2255(f).
The Second Circuit’s reasoning in McCloud is consistent with that of the Fourth, Sixth, and Eighth Circuits, each of which has held that an intervening court of appeals decision does not qualify as a new fact for purposes of § 2255(f)(4), and with decisions of the Seventh and Ninth Circuits interpreting a similarly-worded provision in 28 U.S.C. § 2244. In so holding, several of these courts—the Second Circuit in McCloud included—have distinguished Johnson v. United States, 544 U.S. 295 (2005), where the Supreme Court held that vacatur of a prior state conviction that had been used to enhance a sentence was a “fact” for purposes of § 2255(f)(4), as the order vacating the conviction “is subject to proof or disproof like any other factual issue.” Johnson could have been read to offer the opportunity for habeas relief to the many defendants subject to lengthy sentences based upon convictions that no longer implicate certain sentencing enhancements. But courts have closed the door on that possibility, primarily by drawing a distinction between decisions that vacate a conviction altogether and decisions that leave a conviction intact but alter its consequences. Absent a contrary decision from the Supreme Court (which seems unlikely in the absence of a Circuit split), any relief from this particular over-application of the Career Offender provision will need to come from either the Sentencing Commission or from Congress.