In re: Gilberto Rivero
797 F.3d 986
| 11th Cir. | 2015Background
- Rivero was sentenced as a career offender under mandatory sentencing guidelines and his judgment was upheld on direct and collateral review.
- Rivero filed for permission to file a second or successive 28 U.S.C. § 2255(h) motion seeking to challenge his sentence.
- Johnson v. United States announced a new substantive rule regarding the ACCA residual clause but did not expressly apply to collateral review retroactivity.
- § 2255(h)(2) permits a second/successive motion only if the Supreme Court has made a new rule retroactive to collateral review.
- The court held that Johnson did not establish retroactivity to collateral review under § 2255(h)(2) and denied Rivero’s application.
- The dissent argues Johnson is retroactive and would grant leave for a second/successive motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson created a retroactive new rule under §2255(h)(2). | Rivero contends Johnson is retroactive as a new substantive rule. | The majority holds Johnson is not retroactive under §2255(h)(2). | Johnson not retroactive under §2255(h)(2). |
| Whether Johnson’s rule applies retroactively via Teague/Anderson framework. | Johnson should retroactively apply to collateral review as a substantive rule. | No combination of Supreme Court holdings necessarily dictates retroactivity. | Johnson does not satisfy the retroactivity criteria as applied by the majority. |
| Whether Rivero could file a second/successive motion based on the residual clause in §4B1.2(a)(2) of the Guidelines. | If Johnson creates retroactive substantive rule, it applies to the residual clause, permitting relief. | Retroactivity is not shown; the residual clause remains in dispute, and Congress could alter statutes. | Retroactivity not established; leave denied. |
| Whether Congress could amend §2255(h)(2) to permit retroactive application of Johnson. | Congress could fix retroactivity; denial rests on statutory limitations. | Only Supreme Court-made retroactivity qualifies; Congress cannot circumvent via statute. | Congress would need to amend §2255(h)(2); court cannot grant relief without such amendment. |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (new substantive rule narrowing ACCA residual clause)
- Teague v. Lane, 489 U.S. 288 (1989) (retroactivity framework with narrow exceptions)
- Schriro v. Summerlin, 542 U.S. 348 (2004) (substantive rules retroactively applicable; narrows statutory scope)
- Bousley v. United States, 523 U.S. 614 (1998) (retroactivity of laws narrowing statutory scope; Bailey reference)
- Tyler v. Cain, 533 U.S. 656 (2001) (definition of made retroactive under §2255(h)(2)")
- In re Anderson, 396 F.3d 1336 (2005) (two-step retroactivity analysis for new rules)