UPDATED 6:01 p.m.   The Harrimon case has been scheduled for the Justices’ Conference on Friday of this week.


If the Supreme Court believes the issue is important enough to speed up its review, the federal government has told the Justices, a Texas case on illegal possession of a gun could be used to promptly settle a significant issue with potentially wide impact: that is, whether to apply to earlier cases a new ruling last Term against enhanced sentences in gun prosecutions.  The government, it made clear, does want the decision last June in Johnson v. United States to be retroactive.

That issue should be decided by the Court in the current Term, the government has argued, so that inmates who could benefit legally do not miss a one-year deadline for filing new challenges to their sentences under federal habeas law.  The case of Harrimon v. United States is the only available case that could be reviewed in that time frame, the Court was told.  The filings in that case are here, here, and here.

Under federal criminal law, the gun-possession crime in the case of Richard Ray Harrimon of Wichita Falls would normally carry a maximum prison sentence of ten years in prison.  However, if the convicted individual has at least three prior convictions for a violent felony or a serious drug crime, the Armed Career Criminal Act requires a minimum sentence of fifteen years and a maximum of life in prison.

In defining what is a violent felony, the act specifies some crimes, but then adds what has come to be called a “residual clause,” which treats as a violent felony an offense that “involves conduct that presents a serious potential risk of physical injury to another.”  In the Johnson ruling near the end of last Term, the Court struck down that clause as unconstitutionally vague and commented that the differing interpretations of the clause in lower courts showed its “hopeless indeterminacy.”

When Harrimon’s case was in lower courts, his sentence for illegal possession of a gun by a convicted felon was originally set at ninety-six months — eight years — but then was raised to fifteen years and eight months (188 months) by applying the enhancement provision of the residual clause.  After the Johnson decision emerged, Harrimon began a federal habeas challenge to the longer sentence, seeking to rely upon that decision on the premise that it applied retroactively.

While his case was still pending in a trial court, the Fifth Circuit in a separate case ruled that the Johnson decision would not apply retroactively to cases pending on post-conviction review, such as federal habeas challenges.  The district court judge rejected Harrimon’s plea, and his lawyers then moved on to the Fifth Circuit.  However, instead of waiting for that court to decide his appeal, his lawyers filed a petition asking the Supreme Court to review his challenge prior to a decision by the appeals court.

The only potential barrier to the Court’s prompt review of Harrimon’s petition is his attempt to bypass the court of appeals.  Under the Court’s rules, the Justices will take on a case that is still pending undecided in an appeals court only if it raises an issue of “such imperative importance” as to justify bypassing the usual route up to the Supreme Court.  Solicitor General Donald B. Verrilli, Jr., in filing the government response to Harrimon’s petition, expressed some doubt that this case qualifies for that unusual treatment.

The government noted that Harrimon has already served the sentence that would be valid after the Johnson ruling — the original eight-year sentence — and he does not face the usual one-year deadline for filing a habeas challenge because he filed for habeas within one year after the Johnson decision.

Verrilli’s brief noted, however, that a good many other prison inmates sentenced under the residual clause have been seeking to reopen their sentencing and have been doing so by filing for what are called “extraordinary writs” of a kind that courts seldom grant but are the only option for an inmate who is no longer able to file a habeas petition.  They have done so after their convictions had become final.  But, if they are to take advantage of the Johnson decision on the premise that it lays down new law, they would be able to start a new habeas case only if they meet the one-year deadline — that is, one year after  Johnson‘s date — June 20.

That is why the government left it up to the Court to decide whether the issue is important enough, within the criminal justice system, to use Harrimon’s case to settle the retroactivity of the Johnson decision.

The government had previously cautioned the Court against reviewing five other petitions now at the Court that raise the retroactivity issue.  All of them raise the issue in the context of an “extraordinary writ,” so the government urged the Justices to wait for a case raising the issue without that complication.  Those five petitions have been scheduled for consideration by the Justices at Friday’s private Conference.

Harrimon’s case is not yet scheduled to go to the Justices, but Verrilli requested that it be considered at the January 15 Conference, which would be in time for it to be briefed, argued, and decided this Term.  (SEE UPDATE: The case will go to Conference on Friday of this week.)

The Solicitor General has taken the position in several court filings, and did so in answering Harrimon’s petition, that the Johnson decision actually became retroactive the moment it was decided, because it laid down a new “substantive” rule of law — the kind of decision that does apply to cases that became final before such a ruling emerged.

Although Verrilli expressed some hesitancy about the lack of urgency for Harrimon personally, the Texan’s lawyers argued in their reply brief that the Fifth Circuit has already ruled against retroactivity, so there is no value in waiting for it to rule in his case.

It should become clear in a matter of days whether the Court will schedule this case for its first look on January 15. (SEE UPDATE)

Posted in Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, U.S. wants criminal law ruling to be retroactive (UPDATED), SCOTUSblog (Jan. 7, 2016, 5:10 PM), https://www.scotusblog.com/2016/01/u-s-wants-criminal-law-ruling-to-be-retroactive/