When Can New Constitutional Rulings be Made Retroactive? A Primer on §2255 Motions and Retroactivity
Clients are often unaware that they can benefit from a new constitutional ruling that might impact their sentences. Specifically, if SCOTUS makes a new constitutional ruling retroactive, you may be able to petition a court to reduce your sentence in accordance with the new rule, even when you were sentenced long before the new ruling was issued.
The statute that provides for this retroactivity is §2255(h)(2), which allows for a second or subsequent habeas motion if it contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”
What is Retroactivity?
SCOTUS may allow new constitutional rulings to apply retroactively. This means that if the Court issues a ruling that would have affected your sentence had it been in effect at the time of your original conviction, you may be able to petition a lower court to reconsider your sentence. Clients can substantially reduce their sentences by leaning on a law that applies retroactively.
For example, clients frequently run into this issue when challenging their 924(c) convictions under United States v. Davis, a case that ruled, in part, that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. As we will discuss later, both the 4th and 11th Circuits have held that Davis is a qualifying retroactive SCOTUS decision for habeas purposes.
What Can be Made Retroactive?
A New Rule of Constitutional Law
Only a new rule of constitutional law can be applied retroactively, and
SCOTUS, itself, must declare a ruling retroactive. But the Court will rarely explicitly state that it is making a ruling retroactive, and it can be difficult to figure out if the rule at issue is considered a “new” rule that is going to be made retroactive. SCOTUS has given some guidance on when its decisions can be deemed “new” rules. For instance, in a 1990 case called Saffle vs. Parks, the Court held that if one of its decisions breaks new ground, overturns precedent, or imposes new responsibilities on a government party, then it would be considered a “new” rule.
A decision that announces a “new” rule of constitutional law doesn’t create a new rule out of whole cloth. As Justice Scalia noted in the 1990 case American Trucking Association vs. Smith, the Constitution doesn’t change from year to year. Rather, a “new” ruling simply articulates anew something the Constitution has always required.
Substantive vs. Procedural Rulings
One of the most important distinctions is that retroactivity applies only to substantive constitutional rulings, not procedural ones. According to SCOTUS in Schiro v. Summerlin, substantive rules are those that “narrow the scope of a criminal statute by interpreting its terms” or “place particular conduct or persons covered by the statute beyond the State’s power to punish.”
On the other hand, procedural rules are about the manner in which a trial was conducted in the lower courts. A common example of a procedural rule is the admissibility of evidence. If SCOTUS rules, for instance, that a certain piece of evidence was the fruit of an unlawful search or seizure and the jury should not have seen it, that is a procedural ruling.
Both substantive and procedural rulings directly impact your constitutional rights and ultimately your freedom, but the distinction matters for retroactivity purposes. With few exceptions, only a substantive ruling can be deemed a new constitutional law that applies retroactively.
To further explain, here are two examples:
- Substantive Ruling: A new statute was ruled unconstitutional after your conviction became final. Retroactivity applies.
- Procedural Ruling: A firearm was obtained through a search of your vehicle. The court rules the search was unconstitutional and the firearm thus should not have been admitted into evidence. Retroactivity does not apply.
Who Bears the Burden, and What’s the Standard?
It is your responsibility, as the criminal defendant, to petition a court to apply a new ruling retroactively. Standards differ by jurisdiction, however. The most stringent standard is that you must prove it was “more likely than not” that the ruling announced in the new decision would affect your case.
In holding that Davis is a qualifying retroactive case for habeas purposes, the Fourth Circuit in 2021 broke down its standard for proving that retroactivity applies. In In re: Dearnta Thomas, the Court held that the defendant had to show a “plausible” claim for relief. This does not mean the defendant had to prove he would have prevailed on his underlying claim, but rather, that it was plausible because, for instance, it was timely filed.
The 2019 Eleventh Circuit case In re: Hammond also allowed for Davis retroactivity, stating that it “recognized that federal prisoners who can make a prime facie showing that they were previously sentenced in reliance on the ACCA’s now-voided residual clause are entitled to file a second or successive §2255 motion.” The “reliance” prong has been used in other contexts, for instance, in the immigration deportation case Ferguson vs. U.S. Attorney General.
An Affirmative Defense: Nonretroactivity
There is an affirmative defense known as “nonretroactivity.” The opposing party may argue that the ruling at issue was not a “new” ruling or that the ruling was procedural, not substantive, and thus cannot apply retroactively. But this is something the government (or opposing party) must raise. You are not responsible for addressing it unless and until the other party claims it.
Knowing When Retroactivity Applies
It can be challenging to know when to seek retroactive relief for a criminal sentence. In general, §2255 motions are fraught with technical issues and potential pitfalls, and in particular, it can be challenging to understand distinctions like new vs. old constitutional rulings and substantive vs. procedural laws.
Federal criminal appellate lawyer Elizabeth Franklin-Best helps individuals pursue appropriate legal remedies, including federal habeas motions, based on their specific circumstances. For more information about her practice or to set up a consultation, you may contact us at (803) 445-1333 or send us an email.