Supreme Court Holds Johnson Retroactive to Cases on Collateral Review

Justice Kennedy authored the 7-1 opinion for the Court in Welch v. United States, holding that Johnson applies retroactively to cases on collateral review:

Under this [Teague] framework, the rule announced in Johnson is substantive.  By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the [Act] punishes.” Schriro, supra, at 353.  Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.  An offender in that situation faced 15 years to life in prison.  After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.  The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence.  Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause.  United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971).  It follows that Johnson is a substantive decision [and therefore retroactive].

Three petitions for certiorari are pending, asking the next logical question:  whether Johnson is retroactive as applied to the Guidelines.  See, e.g., Alfrederick Jones v. United States, No. 15-8629, in which the National Association of Federal Defenders recently filed an amicus brief in support of the petition.