In a decision that further narrows the federal habeas corpus remedy, a divided panel of the U.S. Court of Appeals for the Fifth Circuit held on June 2, 2022, that a claim under a new, retroactive Supreme Court ruling to allow a second or successive (SOS) habeas petition was not a new enough claim to avoid the procedural-default bar.
When the Supreme Court declared the “residual clause” of the Armed Career Criminal Act (ACCA) unconstitutional in Johnson v. United States, 576 U.S. 591 (2015), Jose Vargas-Soto requested authorization to file a SOS motion under 28 U.S.C. sec 2255 to vacate his enhanced sentence based on a prior “crime of violence” that he claimed fell under the similar residual clause of the illegal re-entry statute, as defined in 18 U.S.C. sec 16(b). That request was denied, but when the Supreme Court later extended Johnson to the residual clause in the illegal re-entry statute, in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), his second request was granted. He then filed his approved sec 2255 motion in the district court.
That motion, however, was eventually denied, the court holding that Vargas-Soto`s prior conviction for manslaughter during an “intoxicated assault” qualified under the elements clause, and not the unconstitutional residual clause, so his 15-year sentence was legally sound. While Vargas-Soto`s appeal of that denial was pending, the Supreme Court held that a prior conviction that has only a mens rea of recklessness, which Vargas-Soto`s manslaughter conviction had, it wasn`t a valid predicate under the elements clause. Borden v. United States, 141 S. Ct. 1817 (2021). That left Vargas-Soto`s manslaughter prior under the defunct residual clause.
The Claim Wasn`t Barred by the AEDPA
The Antiterrorism and Effective Death Penalty Act (AEDPA) added a res judicata bar to federal habeas corpus in 1996: “A Claim presented in a [SOS] habeas application under sec 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. sec 2244(b)(1). The Fifth Circuit reiterated that it routinely applies this rule to federal prisoners under sec 2255, and that the bar is jurisdictional.
The Court found that Vargas-Soto`s claim in his second request for authorization was the same kind of claim as his first: a void-for-vagueness claim. Whether the claim cited Johnson, Dimaya, or United States v. Davis, 139 S. Ct. 2319 (2019), it was all the same kind of claim.
However, the res judicata bar only applies to claims filed in a SOS “motion,” the Court said, and a request for authorization to file a SOS habeas motion is only a request and not itself a motion. Vargas-Soto filed the same claim in his failed request for authorization, the Court noted, and “that means he never actually filed the underlying motion.” He was not barred by the res judicata bar.
Dimaya was a New, Retroactive Supreme Court Ruling for a SOS Motion
For a court of appeals to authorize a SOS habeas petition or motion, based on a new Supreme Court decision, some narrow criteria must be met: “A new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” sec 2255(h)(2). The Court found Dimaya met these criteria. First, Dimaya was “new” because it wasn`t dictated by precedent, the Court said. “Vargas-Soto`s conviction became final in 2011. At that point, neither Johnson nor Dimaya had been decided. If Dimaya wasn`t dictated by precedent after Johnson it certainly wasn`t when Vargas-Soto`s conviction became final. In short, Dimaya announced a new rule of constitutional law.”
Second, the Supreme Court can make its ruling retroactive by expressly saying so, or by the Court`s holdings in multiple cases that together dictate retroactivity. Tyler v. Cain, 533 U.S. 636 (2001). The Supreme Court didn`t say Dimaya was retroactive, but the combined holdings of four Supreme Court cases “necessarily dictate retroactivity” of Dimaya, the Court said.
Third, Dimaya was previously unavailable. “Vargas-Soto`s last proceeding before the instant sec 2255 motion was a request for authorization to file a successive sec 2255 motion after Johnson … but before Dimaya. Because Dimaya announced a new rule even after Johnson, the claim was previously unavailable to Vargas-Soto,” the Court said.
The Claim was Filed on Time
The AEDPA also imposed a strict one-year time limit for a habeas petition or motion. Under sec 2255(f)(3), which governs first and SOS motions, a petitioner has one year from the date of the new decision. Because of Vargas-Soto`s void-for-vagueness claim had its roots in Johnson, the Court clarified Dimaya did not restart the clock. Instead, it`s the “right” recognized by the Supreme Court that matters, and not the case relied upon, and the “right” in Vargas-Soto`s case was recognized in Johnson.
The Court also counted Vargas-Soto`s denied request for authorization as the filing that stopped the AEDPA clock, since it was the Court`s fault in dismissing it which caused him to have to file again.
A Habeas Petitioner Must Also Clear the Procedural-Default Bar
The hurdle to file a SOS petition was just one obstacle for Vargas-Soto. He also had to get around the procedural-default bar, the Court said. A federal habeas claim is “procedurally-defaulted” if it could have been raised earlier but wasn`t. United States v. Frady, 456 U.S. 152 (1982). There are two exceptions to this rule: (1) showing “cause” for the default and resulting prejudice if the claim isn`t heard, or (2) showing actual innocence. Vargas-Soto couldn`t show “actual innocence” of his enhanced sentence, so the focus of the Court was on whether he could show cause to excuse the default.
To show cause, a petitioner “must show that some objective factor external to the defense impeded counsel`s efforts to comply with the relevant procedural rule.” Davila v. Davis, 137 S. Ct. 2058 (2017). The Supreme Court has held that a “novel” constitutional claim can show cause. The Court defined this as a Supreme Court decision that explicitly overrules one of its decisions, overturns a longstanding and widespread practice by the lower courts, or disapproves a practice that the Supreme Court had approved in prior cases. Reed v. Ross, 468 U.S. 1 (1984).
While most circuits have cited Reed and held that void-for-vagueness claims after Johnson were novel to avoid the procedural-default bar, the Fifth Circuit concluded that Reed was no longer good law after the AEDPA. Even if it were still valid, the Court said that Reed`s novel claim criteria were only dicta, or not the holding of the Court and therefore not binding on the lower courts.
The Court also dismissed the argument that futility could provide cause to excuse procedural-default. “Defense counsel routinely raise arguments to preserve them for further review despite binding authority to the contrary. This entire enterprise would be pointless if futility constituted cause. And it would create a system of litigation freeriding under which prisoners who do not make arguments get a free ride from those who do.”
Judge W. Eugene Davis dissented, saying that requiring defendants to raise frivolous claims just to preserve them for a future, retroactive constitutional ruling by the Supreme Court “defies logic.” “When the Supreme Court forecloses a constitutional claim, every court in the nation, including the High Court, is bound to reject it.” He also added this final view:
The majority opinion stands in direct contradiction to Supreme court authority and unanimous circuit authority. In my view, Vargas-Soto has established cause for his procedural default and has demonstrated that he is entitled to sec 2255 relief. The majority avoids this obvious result by obscuring or misreading applicable authority. It achieves an injustice in this case, and many future cases, despite clear Supreme Court guidance. Therefore, I respectfully dissent.
The two-judge panel nevertheless found that Vargas-Soto`s void-for-vagueness claim was procedurally-defaulted and affirmed the denial of habeas relief. See: United States v. Vargas-Soto, No. 20-10705 (5th Cir. June 2, 2022).
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a consultant in federal post-conviction procedure and an authority on federal sex offense issues.