Is United States vs. Davis Retroactive?
United States vs. Davis and in re Hammoud
Over the past few weeks, we've been discussing United States vs. Davis, a case that provides relief for individuals charged with certain types of 924(c) crimes. When cases like Davis are published, many people ask, "Will this case be applied retroactively?" Retroactivity means, in this sense, that the case may apply to individuals who have already been sentenced. I believed that the answer was no for quite some time. However, in re Hammoud, the 11th Circuit Court held that it could be.
What Happened in the case of in re: Hammoud?
Hammoud pled guilty to retaliation, solicitation to commit murder under 18 USC § 373, use of a gun in furtherance of a crime of violence under 924(c), and possession of a firearm by a convicted felon. Hammoud’s convictions were affirmed in 2007. In 2008 Hammoud filed his original motion to vacate* based on ineffective assistance of trial counsel, but he was denied.
Hammoud asked for permission to file a motion to vacate his sentence in 2018 arguing that his 924(c) charge was unconstitutional, citing Johnson vs. United States and Sessions vs. Dimaya, cases where the Supreme Court held that statutes similar to Hammoud's were vague. The court denied these claims stating that neither Johnson nor Dimaya could support a vagueness challenge to § 924(c)(3)(B). After United States vs. Davis was decided, Hammoud sought permission to file a motion to vacate his sentence.
What did the 11th Circuit Court Decide?
First, the 11th Circuit Court had to determine if Davis was a new rule of constitutional law. The court stated Davis was a new substantive rule of constitutional law because it narrowed the class of people who were eligible to be convicted under § 924(c). It was also new because it extended the rulings in Johnson and Dimaya to a new setting of the law (because Davis was deciding the law as it applied to 924(c) cases) and a new context.
Next, the 11th Circuit Court had to consider whether the Supreme Court has made Davis retroactive to cases on collateral review. Although the Supreme Court has not explicitly “made [the ruling in Davis] retroactive to cases on collateral review,” the Eleventh Circuit determined that they could look at Welch vs. United States, the same Supreme Court decision that caused Johnson to be retroactive in order to determine that Davis was retroactive. Further, the Eleventh Circuit held that a claim based on Davis is a new substantive rule of constitutional law in its own right separate from Johnson and Dimaya, making it immune from rules prohibiting prisoners from repeating the same claim in multiple motions.
Finally, the 11th Circuit Court looked at whether Hammoud's claim was appropriate to go forward. The court said that it was, indicating that the claim that he made, whether a solicitation of murder met the standard for "crime of violence," had not been decided by the Supreme Court nor the 11th Circuit Court. This meant that Hammoud's claim was appropriate to go forward.
As a result, the 11th Circuit Court granted Hammoud permission to file a motion to vacate.
What happens now? What about my loved one?
It is unclear if other courts will follow suit, especially given that the 11th Circuit Court decided that they could look at other Supreme Court cases to determine whether the Supreme Court would apply this case retroactively on collateral review. I believe that this matter will go all the way up to the Supreme Court and they will have to decide if Davis shall be applied retroactively. But I am hopeful, especially given that the 11th Circuit Court, a relatively unfavorable court for accused individuals, decided this case.
*Click here for a more detailed explanation on what a motion to vacate is.