Second Circuit Grants Successive Habeas Petition Challenging Application of Career Offender Guideline’s Residual Clause

In Blow v. United States, 16-1530 (Katzmann, Wesley, Hall), the Court granted Michael Blow’s motion for leave to file a second or successive habeas petition in a short per curiam opinion.  Blow’s motion asked the Court to consider the application of the career offender sentencing enhancement.  That enhancement, Section 4B.1.1 of the U.S. Sentencing Guidelines, raises a defendant’s offense level if the defendant has two previous convictions for a “crime of violence.”  A “crime of violence” is defined, in part, as an offense that “otherwise involves conduct that presents a serious potential physical risk of injury to another.”  This “residual clause” is identical to language in the Armed Career Criminal Act (which provides for heightened punishment for firearm offenders with three prior convictions for a “violent felony”) declared unconstitutionally vague by Johnson v. United States, 135 S. Ct. 2251 (2015).

In Welch v. United States, 136 S. Ct. 1257 (2016), the Supreme Court held that Johnson announced a new rule of constitutional law that applied retroactively to cases on collateral review.  Blow’s motion raises a related question that the Supreme Court has not yet answered:  whether Johnson and Welch apply to Guidelines Section 4B1.1’s residual clause.  The Supreme Court recently granted certiorari in a case, Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. Jun. 27, 2016), that raises this precise question.  In an opinion issued just a week ago, the Second Circuit held that the Guideline’s residual clause was itself void for vagueness.  See United States v. Jones, No. 15-1518 (2d Cir. July 21, 2016).  In light of the “substantial disagreement among other circuits” over the question raised by Blow’s petition, the Second Circuit concluded that Blow had made a prima facie showing that his claim satisfied § 2255(h)’s requirements for certifying a second or successive petition and granted the motion.  The panel ordered the district court to hold Blow’s motion in abeyance pending the outcome of Beckles.  This prudent decision is somewhat reminiscent of how the Circuit handled cases in the time period between the Supreme Court’s decisions in Blakely and Booker.  See United States v. Mincey, 380 F.3d 102, 106 (2d Cir. 2004) (declining to apply Blakely to the Guidelines but holding the mandate in cases that would be impacted by the impending decision in Booker).

-By Susan Millenky and Harry Sandick