Alford Embry
831 F.3d 377
6th Cir.2016Background
- Movant Alford Embry, sentenced in 2000 for bank robbery and firearms offenses, was designated a career offender under U.S.S.G. § 4B1.1 based on prior robbery and wanton endangerment convictions, increasing his Guidelines range and sentence.
- Embry filed a successive § 2255 motion (transferred to the Sixth Circuit for authorization) arguing Johnson v. United States voids the Guidelines’ identical residual clause (U.S.S.G. § 4B1.2(a)(2)) and thus his career-offender designation.
- The Sixth Circuit previously held in United States v. Pawlak that the Guidelines’ residual clause is unconstitutionally vague, but it is contested whether Pawlak merely applied Johnson or announced a distinct new rule.
- AEDPA requires authorization for successive § 2255 motions only when based on a “new rule” made retroactive by the Supreme Court; the Supreme Court has made Johnson retroactive (Welch) but has not yet ruled on whether Johnson extends to the advisory Guidelines.
- Circuits are split: some (Second, Fourth, Sixth, Tenth) have applied Johnson to the Guidelines; others (Fifth, Eighth, Eleventh, Seventh) have declined, with the Eleventh holding vagueness inapplicable to advisory Guidelines.
- Given pending Supreme Court review in Beckles (whether vagueness applies to the advisory Guidelines and whether any rule is retroactive), the Sixth Circuit granted Embry’s motion and transferred the case to the district court to be held in abeyance.
Issues
| Issue | Embry's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Johnson’s invalidation of the ACCA residual clause extends to the Sentencing Guidelines’ residual clause | Johnson’s rule on vagueness applies equally to the Guidelines’ identical residual clause, so Embry’s career-offender status is invalid | The vagueness doctrine does not apply to advisory Guidelines; Johnson does not dictate invalidation of the Guidelines’ residual clause | Circuit uncertain; declined to decide now—granted authorization and transferred to district court pending Beckles |
| Whether Pawlak announces a “new rule” distinct from Johnson for § 2255(h)(2) purposes | Pawlak merely applied Johnson; thus Embry relies on a Supreme Court-made retroactive rule | Pawlak breaks new ground by holding advisory Guidelines susceptible to due-process vagueness, so it is a distinct new rule not yet made retroactive by the Supreme Court | Court leaned that Pawlak likely announces a new rule but did not decide; left to district court after Supreme Court guidance |
| Whether authorization of successive Johnson-based § 2255 motions is time-barred under AEDPA’s one-year limitation | Embry contends his claim is timely if tied to the Supreme Court’s recognition of the rule | Government argues treating Pawlak as new could create statute-of-limit problems and motions filed after Johnson’s one-year cutoff may be barred | Court avoided resolving statute-of-limit issue now; will permit district courts to consider timeliness and hold cases in abeyance |
| Appropriate procedural disposition for many similar § 2255 motions | Embry seeks authorization to proceed and district-court resolution | Government favors denial/limiting successive filings to avoid burdens and potential time-bar issues | Court granted gatekeeping authorization and transferred cases to district courts to hold in abeyance pending Beckles |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (2015) (struck down ACCA residual clause as unconstitutionally vague)
- United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016) (held Guidelines’ residual clause unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson’s rule is retroactive on collateral review)
- Teague v. Lane, 489 U.S. 288 (1989) (framework for determining what constitutes a “new rule” for habeas purposes)
- Chaidez v. United States, 133 S. Ct. 1103 (2013) (explains when a rule is not dictated by precedent—must be apparent to all reasonable jurists)
- United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejected vagueness challenges to advisory Guidelines)
- Peugh v. United States, 133 S. Ct. 2072 (2013) (held Ex Post Facto Clause can apply to Guidelines’ sentencing calculations)
- Irizarry v. United States, 553 U.S. 708 (2008) (addressed limits on collateral attacks on Guidelines-based sentencing)
- Dodd v. United States, 545 U.S. 353 (2005) (statute of limitations for § 2255 runs from date the right was initially recognized)