JOHN WORMAN, Petitioner-Appellant, v. FREDERICK ENTZEL, Warden, Respondent-Appellee.
No. 19-2048
United States Court of Appeals For the Seventh Circuit
DECIDED MARCH 26, 2020
ARGUED FEBRUARY 27, 2020
Before BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.
John Worman used to work at Winnebago Industries, an Iowa company that manufactures and sells recreational vehicles. His supervisor, Paulette Torkelson, repeatedly noted his poor performance and in time the company terminated him. Worman then started his own company and landed a contract to provide parts to Winnebago, but the agreement fell through. Worman blamed Torkelson for the misfortune and sought revenge by mailing her a pipe bomb. The U.S. Postal Service intercepted the package, and a criminal investigation commenced in short order.
A federal grand jury sitting in the Northern District of Iowa charged Worman with mailing an explosive device (
On the alleged facts—and owing to the gravity of Worman‘s conduct—the
Worman proceeded to trial in the Northern District of Iowa, and the jury convicted him on all counts. The district court then sentenced Worman to 361 months’ imprisonment—360 months (30 years) for the
As sensible as it may sound, the sentence reflected a legal error. The reason is because, at the time of Worman‘s sentencing, the Eighth Circuit prohibited district judges from considering a mandatory consecutive sentence (like Worman‘s 30-year
On remand the district court adhered to the Eighth Circuit‘s direction and resentenced Worman to 528 months’ (44 years‘)
In 2016, Worman turned to pursuing post-conviction relief, filing a pro se motion for a new sentence under
Two years later the Supreme Court decided Dean v. United States, 137 S. Ct. 1170 (2017). Dean overruled the Eighth Circuit‘s case law prohibiting sentencing courts from considering
Worman recognized the importance of Dean and turned his attention to securing a sentencing reduction through a second pursuit of habeas relief. In doing so, though, he had to overcome a substantial procedural obstacle—he had already filed a motion to vacate his sentence, the one seeking relief based on Johnson. Even though it went nowhere, Worman‘s first filing had consequences: subject to narrow exceptions, Congress has limited federal inmates to one motion for habeas relief. See
Worman realized this firsthand when the circuit court denied his request to file a second
Recognizing that any further motions under
The district court dismissed the petition, concluding that, even though the Supreme Court‘s recent decision in Dean provided Worman a strong challenge to his 44-year sentence, he could not satisfy the exacting
II
A
Worman‘s appeal implicates an area of law riddled with complexity—the savings clause of
Section 2255(h) limits second and successive federal habeas motions. All agree that Worman does not meet either of the two exceptions authorizing a second
We analyzed the savings clause in In re Davenport and determined that it allows petitioners “a reasonable opportunity” to obtain a judicial determination of “the fundamental legality” of their convictions and sentences. In re Davenport, 147 F.3d 605, 609 (7th Cir. 1998); see also Webster, 784 F.3d at 1136 (articulating the same point and interpreting Davenport the same way). Since then we have developed a three-part test for determining whether
- Step #1: the federal prisoner must seek relief based on a decision of statutory interpretation (as opposed to a decision of constitutional interpretation, which the inmate could raise in a second or successive
§ 2255 motion); - Step #2: the statutory rule of law in question must apply retroactively to cases on collateral review and could not have been invoked in a first
§ 2255 motion; and - Step #3: a failure to afford the prisoner collateral relief would amount to an error “grave enough” to constitute “a miscarriage of justice.”
Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016); see also Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019) (articulating and applying the same test).
We move quickly beyond step #1 because everyone agrees that the Supreme Court‘s decision in Dean was a decision of statutory law—an interpretation of a district court‘s sentencing discretion under
Step #2 presents the question on which Worman‘s appeal turns—whether Dean applies retroactively to cases on collateral review. Because we conclude that it does not, our analysis ends there.
The north star precedent on the question of retroactivity in the law of habeas corpus came in Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion). The proper analysis follows the model of a decisional tree, with each branch presenting sequential questions of increasing levels of detail. See Chaidez v. United States, 655 F.3d 684, 688 (7th Cir. 2011) (laying out Teague‘s multi-step analysis).
Worman begs to differ, urging us to refrain from applying Teague‘s retroactivity framework and instead to rely on Bousley v. United States, 523 U.S. 614 (1998), to conclude that all interpretations of criminal statutes apply retroactively to cases on collateral review. We decline the invitation. Bousley addressed the retroactivity of Bailey v. United States, 516 U.S. 137 (1995), and decided that Bailey announced a substantive (and therefore retroactive) rule because it narrowed the scope of a criminal statute,
At the outset, Teague requires identification of the rule of law in question and asks whether it embodies an “old” or “new” rule. To be “new,” the rule at issue—here, the degree of sentencing discretion the Supreme Court recognized in Dean—must not have been dictated by precedent. See Teague, 489 U.S. at 301. If the rule is determined to be old (or, if you prefer, “not new“), it cannot provide the basis of a claim under the savings clause because the petitioner could have raised it earlier. See In re Davenport, 147 F.3d at 610 (explaining that a
If the rule is new, however, Teague proceeds to require determining what type of rule the Court announced. See id. at 311. So-called “substantive” rules—which reduce or enlarge the scope of a criminal statute—are always retroactive. See Schriro v. Summerlin, 542 U.S. 348, 351–52 (2004). Procedural rules, which govern all other aspects of a criminal proceeding, are retroactive only if they are “watershed.”
Teague, 489 U.S. at 311; see also Schriro, 542 U.S. at 352 (explaining that habeas petitioners need to make a more demanding showing to rely retroactively on a new procedural rule because changes to procedure have a “more speculative connection to innocence” than substantive rules). To make that determination, we must look closer at the content of the rule and decide whether it goes to the fundamental fairness and accuracy of the criminal proceeding. See Teague, 489 U.S. at 313 (limiting retroactive effect to “those new procedures without which the likelihood of an accurate conviction is seriously diminished“).
Starting from the beginning—with the threshold old or new rule question—the answer is easy: Dean is new because the rule the Court announced, the sentencing discretion it recognized, was not compelled by any prior precedent. Recall that the Eighth Circuit‘s precedent in place at the time of Worman‘s initial sentencing precluded the district court from exercising the very discretion that led to the 361-month sentence. See, e.g., United States v. Dean, 810 F.3d 521 (8th Cir. 2015); see also Chaidez, 655 F.3d at 689 (noting that a Supreme Court rule is likely to be new “if the lower courts were split on the issue“). Indeed, Dean itself made its way to
The next fork in the road comes with determining whether Dean announced a new substantive or procedural rule. By its terms, Dean is only about the proper and available scope of discretion district judges can exercise in sentencing defendants like Worman, who find themselves facing a
The final branch in Teague‘s decisional tree requires asking whether the new procedural rule announced in Dean constitutes a so-called “watershed rule“—a rule both necessary to prevent “an impermissibly large risk” of an inaccurate conviction and which changes our understanding of the “bedrock procedural elements” essential to the fairness of a proceeding. Teague, 489 U.S. at 311–13; see also Whorton v. Bockting, 549 U.S. 406, 418 (2007) (applying Teague and identifying the same twofold inquiry at this step). If this dimension of the Teague analysis sounds demanding, that is the right reaction. With the exception of Gideon v. Wainwright, 372 U.S. 335 (1963), the landmark decision recognizing an indigent criminal defendant‘s right to counsel, the Supreme Court has not identified any other procedural rules qualifying for watershed status. See Whorton, 549 U.S. at 418 (emphasizing that “in the years since Teague, [the Court] has rejected every claim that a new rule satisfie[s] the requirements for watershed status“).
It is this final hurdle that Worman cannot clear. Dean did not establish a watershed rule of criminal procedure, and we reach that conclusion by heeding the Supreme Court‘s emphasis in Teague itself that it is “unlikely that many such components of basic due process have yet to emerge.” 489 U.S. at 313. No court has held otherwise.
Consider, too, the many other new procedural rules that have fallen short of watershed status. A prime example came in Crawford v. Washington, 541 U.S. 36 (2004). The Court in Crawford held that the Sixth Amendment‘s Confrontation Clause prohibits the use of out-of-court testimonial statements at trial unless that witness is unavailable and the defendant had a prior opportunity for cross-examination. Id. at 68. Crawford worked a sea change in criminal procedure—a point many commentators recognized. See, e.g., Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. RICH. L. REV. 511, 626 (2005) (“After Crawford, the world of confrontation law has been radically altered.“). Yet three years later, in its 2007 decision in Whorton, a unanimous Supreme Court concluded that Crawford did not announce a new watershed rule of criminal procedure. See 549 U.S. at 421. Crawford did not qualify, the Court explained, because the confrontation right recognized there was not a
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We are not blind to how difficult this opinion will be for John Worman to read. Yes, he committed a horrific crime—sending a pipe bomb to his former supervisor. And yes, the district court was right to conclude that Worman deserved a substantial sentence. But so, too, is there no doubt that the district court believed that a 361-month sentence was adequate, leaving Worman in jail until he was 84. That exercise of sentencing discretion likely would have stood had the Supreme Court decided Dean before Worman filed his first