De'Angelo A. Cross, Petitioner-Appellant,
United States of America, Respondent-Appellee, and Carl Leo Davis, Petitioner-Appellant,
United States of America, Respondent-Appellee.
January 10, 2018
Appeals from the United States District Court for the Eastern
District of Wisconsin. No. 15-C-1338 - J. P. Stadtmueller,
Judge, and No. 16-C-747 - William C. Griesbach, Chief Judge.
Wood, Chief Judge, Hamilton, Circuit Judge, and Bucklo,
District Judge. [*]
compliance with the U.S. Sentencing Guidelines was still
understood to be mandatory, district courts were required to
impose an extended term of incarceration on so-called career
criminals. This class of repeat felons was limited to those
previously convicted twice for drug crimes or crimes of
violence. The later offenses included any felony
"involv[ing] conduct that present[ed] a serious
potential risk of physical injury to another." U.S.S.G.
§ 4B1.2(a)(2) (1992); U.S.S.G. § 4B1.2(a)(2)
(2000). We will call that definition of a crime of violence
the "residual clause" in this opinion.
Supreme Court jetisoned the mandatory nature of the
guidelines in 2005, in its decision in United States v.
Booker, 543 U.S. 220. The Booker decision did
not, however, immediately affect sentences imposed on
defendants previously. Thus, De'Angelo Cross and Carl
Davis continued to serve obligatory sentences as career
offenders as required by the mandatory guidelines. Both Cross
and Davis qualified for that designation because of the
residual clause. Their present appeal challenged the
constitutionality of that clause.
recent developments form the backdrop for our decision:
first, the Supreme Court's holding in Johnson v.
United States, 135 S.Ct. 2551 (2015), that the identical
language in the Armed Career Criminal Act, 18 U.S.C. §
924(e) (2012), is unconstitutionally vague; and second, the
Court's ruling in Beck-les v. United States, 137
S.Ct. 886 (2017), that Johnson does not extend to
the post-Booker advisory guidelines, including the
career-offender guideline. We conclude that Beckles
applies only to advisory guidelines, not to mandatory
sentencing rules. Under Johnson, the guidelines
residual clause is unconstitutionally vague insofar as it
determined mandatory sentencing ranges for
pre-Booker defendants. Cross and Davis are both
entitled to be resentenced.
and Davis brought their cases to the district court through
motions under 28 U.S.C. § 2255 for relief from their
sentences. Each was unsuccessful before the district court
and appealed to this court. In light of the substantial
overlap in the issues presented, we consolidated their cases.
the district court sentenced Cross (2000) and Davis (1992),
the then-mandatory sentencing guidelines prescribed an
elevated sentence for those denominated career offenders.
U.S.S.G. § 4B1.1. A defendant qualified as a career
offender upon his third felony conviction for either a crime
of violence or a drug offense. Id. The guidelines
defined the term "crime of violence" in three ways:
an elements approach, U.S.S.G. § 4B1.2(a)(1); an
enumerated offense approach, id. § 4B1.2(a)(2),
first part; and the residual clause, id. §
4B1.2(a)(2), final clause. As we noted, the residual clause
covered any offense that "involves conduct that presents
a serious potential risk of physical injury to another."
Id. Both Cross and Davis were sentenced as career
offenders on the basis of the residual clause, and neither
objected at trial. Davis did not file a direct appeal.
Although Cross filed a notice of appeal (despite generally
waiving his right to appeal or to file for collateral relief
in his plea agreement), this court dismissed his case as
frivolous after his atorney filed a no-merit brief to which
Cross did not respond. United States v. Cross, 24
Fed.Appx. 576, 577 (7th Cir. 2001); see Anders v.
California, 386 U.S. 738, 744-45 (1967).
Davis's and Cross's convictions, the Supreme Court
has dramatically altered the federal sentencing landscape.
First, Booker demoted the federal sentencing
guidelines from mandatory to advisory. 543 U.S. 220. Then
Johnson struck down the residual clause of the Armed
Career Criminal Act (ACCA) as unconstitutionally vague,
overruling contrary decisions in James v. United
States, 550 U.S. 192');">550 U.S. 192 (2007), and Sykes v. United
States, 564 U.S. 1 (2011), and upseting a host of
decisions from every court of appeals in the country. The
residual clause of the ACCA, which imposed increased minimum
and maximum sentences, used identical language to that
employed in the guidelines. Compare 18 U.S.C. §
924(e)(2)(B) (2012) with U.S.S.G. § 4B1.2(a)(2) (1992
and 2000). The Court subsequently declared Johnson
retroactive. Welch v. United States, 136 S.Ct. 1257
(2016). Meanwhile, the Court applied the ex post
facto clause to bar a retrospective increase in an
advisory guidelines range. Peugh v. United
States, 569 U.S. 530 (2013). Yet contrary to this
circuit's expectations, see United States v.
Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en
banc) (declaring the residual clause in the
advisory guidelines void for vagueness under
Johnson), the Court held in Beckles that
the void-for-vagueness doctrine has no role to play in the
advisory guidelines and upheld the use of the
residual clause in that context, 137 S.Ct. 886.
light of these developments and within one year of
Johnson, Cross and Davis each sought resentencing
under 28 U.S.C. § 2255. In Cross's case, even though
the judge expressed considerable sympathy for Cross's
vagueness argu- ment, he thought himself bound by this
court's refusal to entertain vagueness challenges to the
mandatory guidelines in United States v. Brierton,
165 F.3d 1133, 1139 (7th Cir. 1999), and advisory guidelines
in United States v. Tichenor, 683 F.3d 358, 364-65
(7th Cir. 2012). Notwithstanding the fact that we had
reversed course in Hurlburt, the judge "c[ould]
not conclude with certainty that Hurlburt's
abrogation of Tichenor [and Brierton]
remain[ed effective] notwithstanding Beckles, "
in which the Supreme Court abrogated the specific holding of
Hurlburt. In the alternative, he held that the broad
waiver of appellate rights in Cross's plea agreement
could not be overcome, even though the appeal waiver permited
motions "based on … the sentencing court's
reliance on any constitutionally impermissible factor."
different district judge handled Davis's motion, but he
too concluded that relief was not in order. He found that
Da-vis's motion was barred by the one-year limitations
period in 28 U.S.C. § 2255(f). He acknowledged that
section 2255(f)(3) reopens the limitations period for an
additional year 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." Id. § 2255(f)(3). He also
recognized that Davis filed his petition within a year of
Johnson's issuance. Nonetheless, the judge
believed that the Supreme Court's invalidation of the
residual clause in the ACCA did not carry over to the
residual clause in the pre-Booker, mandatory version
of the career-criminal sentencing guideline. In the
alternative, he held that Davis qualified as a career
offender under the elements clause of the guidelines. See
U.S.S.G. § 4B1.2(a)(1) ("crime of violence"
also includes any felony that "has as an element the
use, atempted use, or threatened use of physical
force"). On that basis, he concluded that Davis was
still a career offender notwithstanding Johnson.
Cross's and Davis's appeals present legal, rather
than factual disputes, we consider the district courts'
conclusions de novo. Delatorre v. United
States, 847 F.3d 837, 843 (7th Cir. 2017). We begin by
explaining why we reject the various procedural hurdles that
the government has raised as a bar to our reaching the merits
of both these appeals.
and Davis each filed his section 2255 motion within one year
of the Supreme Court's decision in Johnson. The
government nonetheless argues that their motions were
untimely. Federal prisoners "claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United
States" may ask the sentencing court to "vacate,
set aside or correct the sentence." 28 U.S.C. §
2255(a). They must, however, file their motion within a
specified time. Id. § 2255(f). The only
limitation period potentially applicable to Cross's and
Davis's cases runs for one year 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." Id. § 2255(f)(3).
Dodd v. United States clarifies that this limitation
period begins when the Supreme Court declares a new right,
not when courts first acknowledge that right to be
retroactive. 545 U.S. 353, 356-60 (2005). Thus, the
timeliness of Cross's and Davis's motions hinges on
whether the right they "assert was initially
recognized by" Johnson. 28 U.S.C. §
government argues that Johnson recognized the
invalidity of the residual clause only vis-à-vis the
ACCA. Cross and Davis, unlike Johnson, were sentenced under
the residual clause of the guidelines. The government
concludes, therefore, that section 2255(f)(3) cannot help
them, unless and until the Supreme Court explicitly extends
the logic of Johnson to the pre-Booker
mandatory guidelines. The Fourth and Sixth Circuits have both
accepted this view. Raybon v. United States, 867
F.3d 625, 629-31 (6th Cir. 2017); United States v.
Brown, 868 F.3d 297, 301-04 (4th Cir. 2017). The First
Circuit has rejected it. Moore v. United States, 871
F.3d 72, 80-84 (1st Cir. 2017).
government's approach suffers from a fundamental flaw. It
improperly reads a merits analysis into the limitations
period. Section 2255(f)(3) runs from "the date on which
the right asserted was initially recognized by the
Supreme Court." 28 U.S.C. § 2255(f)(3) (emphasis
added). It does not say that the movant must ultimately
prove that the right applies to his situation; he
need only claim the benefit of a right that the Supreme Court
has recently recognized. An alternative reading would require
that we take the disfavored step of reading
"asserted" out of the statute. See Duncan v.
Walker, 533 U.S. 167, 174 (2001) ("It is our duty
'to give effect, if possible, to every clause and word of
a statute." (quoting United States v. Menasche,
348 U.S. 528, 538-39 (1955)).
Cross and Davis claim the right to be resentenced on the
ground that the vague (yet mandatory) residual clause
unconstitutionally fixed their terms of imprisonment. The
right not to be sentenced under a rule of law using this
vague language was recognized in Johnson. 135 S.Ct.
at 2556-57 ("The prohibition of vagueness in criminal
statutes … appl[ies] not only to statutes defining
elements of crimes, but also to statutes fixing sentences
… . [T]he indeterminacy of the … residual
clause … denies due process of law."); see also
Beckles, 137 S.Ct. at 892 ("In
Johnson, we applied the vagueness rule to a statute
fixing permissible sentences. The ACCA's residual clause
… fixed-in an impermissibly vague way-a higher range
of sentences for certain defendants.").
satisfied that the requirements of section 2255(f)(3) are
met. Under Johnson, a person has a right not to have
his sentence dictated by the unconstitutionally
vague language of the mandatory residual clause. Davis and
Cross assert precisely that right. They complied with the
limitations period of section 2255(f)(3) by filing their
motions within one year of Johnson. See also
Vitrano v. United States, 721 F.3d 802, 807-08 (7th
Cir. 2013) (holding that the Supreme Court recognized the
general right not to be subject to an enhanced sentence based
on an understanding of the term "violent felony"
that conflicted with Begay v. United States, 553
U.S. 137, 148 (2008), and thus holding motion under section
2255 untimely when it was filed more than a year after
Begay was decided).
government next raised the ubiquitous specter of procedural
default. Because neither Cross nor Davis challenged the
constitutionality of the residual clause at trial or on
direct appeal, the government argues they are barred from
doing so now.
initial mater, forfeiture and waiver can stymie an appellee
as well as an appellant. In Cross's case, the government
waived its procedural default argument vis-à-vis Cross
by failing to assert it adequately in the district court.
Atempt-ing to make the best of a bad showing, the government
admits that it raised procedural default only
"succinctly" in a footnote. This is not enough, as
we have held repeatedly. United States v. White, 879
F.2d 1509, 1513 (7th Cir. 1989); see also Harmon v.
Gordon, 712 F.3d 1044, 1053 (7th Cir. 2013).
general, habeas corpus petitioners may not raise any issue
that they might have presented on direct appeal. McCoy v.
United States, 815 F.3d 292, 295 (7th Cir. 2016). A
petitioner may, however, overcome procedural default by
showing cause for the default and actual prejudice,
Bousley v. United States, 523 U.S. 614, 622 (1998),
or that "failure to consider the defaulted claim will
result in a fundamental miscarriage of justice, "
Johnson v. Loftus, 518 F.3d 453, 455-56 (7th Cir.
2008). Cross and Davis have established their right to raise
this claim by way of the "cause and prejudice"
avenue. We thus have no need to discuss the question whether
the "fundamental miscarriage of justice" approach
might also support their motions.
no doubt that an extended prison term-which was imposed on
both men as a result of their designation as career
offenders-constitutes prejudice. See Glover v. United
States, 531 U.S. 198, 203 (2001). That narrows our
inquiry to whether they have shown cause for not objecting at
trial. A change in the law may constitute cause for a
procedural default if it creates "a claim that 'is
so novel that its legal basis is not reasonably available to
counsel.'" Bousley, 523 U.S. at 622
(quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). In
Reed, the Court identified three nonexclusive
situations in which an atorney may lack a "reasonable
basis" to raise a novel claim:
First, a decision of this Court may explicitly overrule one
of our precedents. Second, a decision may "over-tur[n] a
longstanding and widespread practice to which this Court has
not spoken, but which a near-unanimous body of lower court
authority has expressly approved." And, finally, a
decision may "dis-approv[e] a practice this Court
arguably has sanctioned in prior cases."
Reed, 468 U.S. at 17 (quoting United States v.
Johnson, 457 U.S. 537, 551 (1982)).
government, relying on a footnote in Richardson v.
Lemke, 745 F.3d 258, 274 n.7 (7th Cir. 2014), suggests
that Reed is no longer good law. In
Richardson, we assumed the validity of
Reed, even as we noted that in Prihoda v.
McCaughtry, 910 F.2d 1379, 1386 (7th Cir. 1990), we had
questioned Reed's continuing force after
Teague v. Lane, 489 U.S. 288 (1989). Later cases,
however, put our concerns to rest. The Supreme Court has
since relied on Reed, see Bousley, 523 U.S.
at 622, as have we, e.g., McCoy v. United
States, 815 F.3d at 295- 96 (7th Cir. 2016);
McKinley v. Butler, 809 F.3d 908, 912 (7th Cir.
2016). Moreover, Prihoda did not hold that legal
change as understood by Reed could never constitute
cause; rather, it said that legal change had to qualify as
retroactive under Teague for the petitioner to
prevail. Prihoda, 910 F.2d at 1385-86. In other
words, we thought that legal change under Teague was
concentrically nested within legal change under
Reed, rendering the latter superfluous once a claim
qualified under Teague. Id.
and Davis could not reasonably have challenged the guidelines
residual clause when the district court sentenced them in
1992 and 2000 respectively. On this point, we agree with our
sister circuits that "no one-the government, the judge,
or the [defendant]-could reasonably have anticipated
Johnson." United States v. Snyder, 871
F.3d 1122, 1127 (10th Cir. 2017) (quoting United States
v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016)). In
fact, the Johnson Court expressly overruled its own
precedent, 135 S.Ct. 2563 ("Our contrary holdings in
James[, 550 U.S. 192');">550 U.S. 192, ] and Sykes[, 131
S.Ct. 2267, ] are overruled."), and so satisfied the
first criterion of Reed. Although Johnson
involved the ACCA rather than the career-offender guidelines,
the language it evaluated was nearly identical to that in the
career-offender guidelines. We acknowledge that the cases
overruled by Johnson were not decided until 2007 and
2011-after the petitioners' sentencing- and thus could
not themselves have influenced petitioners' failure to
object at trial. Nonetheless, when the Supreme ...