Tiofila Santillana v. Jody Upton, Warden, 846 F.3d 779

Background

Santillana was convicted in 2009 of distributing methadone that resulted in a death, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
On direct appeal the Fifth Circuit affirmed, noting medical testimony that methadone at least contributed to the death and stating a reasonable jury could find a heightened degree of causation.
The Supreme Court decided Burrage v. United States, holding that when the distributed drug is not independently sufficient to cause death, the government must prove the drug use was a but-for cause to trigger the § 841(b)(1)(C) enhancement.
Santillana filed a § 2241 habeas petition invoking Burrage and arguing actual innocence of the § 841(b)(1)(C) enhancement; the district court dismissed for lack of jurisdiction, finding Santillana did not satisfy the § 2255(e) savings clause.
The Fifth Circuit considered whether Burrage is retroactively applicable for savings-clause purposes and whether Santillana carried her burden to show she may have been convicted of a nonexistent offense.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Burrage is retroactively applicable under the § 2255(e) savings clause	Burrage is a substantive statutory interpretation narrowing criminal liability and thus applies retroactively	Burrage should not be treated as retroactive because some courts read it as procedural (Apprendi/Alleyne)	Burrage is a substantive decision narrowing the statute and thus applies retroactively
Whether Santillana satisfies the savings-clause threesome (retroactive rule plus previously foreclosed by circuit law plus conviction of a nonexistent offense)	Burrage is retroactive and the record does not show the jury necessarily found but-for causation, so she may have been convicted of a nonexistent offense	The record (including the Fifth Circuit’s direct-appeal statement) supports that a reasonable jury found sufficient causation; thus she cannot show conviction of a nonexistent offense	Santillana met her burden: the indictment and jury instructions do not show the jury found but-for causation, so she may have been convicted of a nonexistent offense
Whether the district court lacked authority to decide retroactivity because only the Supreme Court may declare retroactivity	Tyler v. Cain (concerning § 2244) limits courts unless Supreme Court has declared retroactivity	The savings-clause analysis is not tethered to Tyler; Fifth Circuit precedent permits courts to assess retroactivity for statutory-interpretation decisions	The court may determine retroactivity for purposes of § 2255(e); it is not limited to Supreme Court having declared retroactivity
Whether the jury actually found but-for causation based on the indictment and instructions	Santillana: the indictment and jury instructions focused on causation generally and do not show a but-for finding	Government: prior appellate statement that a reasonable jury could find heightened causation supports affirmance	The record does not establish the jury found but-for causation; therefore Santillana plausibly shows potential conviction of a nonexistent offense

Key Cases Cited

Burrage v. United States, 134 S. Ct. 881 (2014) (holds but-for causation required for § 841(b)(1)(C) enhancement when drug use was not independently sufficient to cause death)
Garland v. Roy, 615 F.3d 391 (5th Cir. 2010) (sets three-part test for when § 2255 is inadequate or ineffective under the savings clause)
Reyes-Requena v. United States, 243 F.3d 893 (5th Cir. 2001) (savings-clause framework cited for retroactive Supreme Court decisions)
Schriro v. Summerlin, 542 U.S. 348 (2004) (distinguishes substantive versus procedural new rules and explains retroactivity of substantive rules)
Bousley v. United States, 523 U.S. 614 (1998) (addresses actual-innocence gateway and retroactivity of substantive law changes)
United States v. Santillana, 604 F.3d 192 (5th Cir. 2010) (direct-appeal opinion describing the evidence and stating a jury could find heightened causation)