In 2009, Kurt Harrington was convicted of seven drug offenses. The government filed a notice pursuant to 21 U.S.C. 841 and 851 based on a 2002 felony drug conviction. As a result, Harrington faced a mandatory term of life imprisonment “if death results from the use of substance and violation was committed after prior conviction for felony drug offense.” 21 U.S.C. 841(b)(1)(A). The district court sentenced Harrington to concurrent terms of life in prison on two counts, and 360 months on the five remaining counts. The Eighth Circuit Court of Appeals affirmed Harrington’s convictions in 2010.
In 2014, the Supreme Court decided Burrage v. United States, 571 U.S. 204 (2014). In Burrage, the Supreme Court held that “at least where use of the drug distribution by the defendant is not an independently sufficient case of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. 841(b)(1)(C) unless use is a but-for cause of the death or injury.” 571 U.S. at 218-19.
Following the Court’s decision in Burrage, Harrington filed a petition for writ of habeas corpus under 28 U.S.C. 2241, challenging his conviction and sentence. The petition was subsequently denied. However, in 2017, Harrington filed a second 2241 petition citing intervening out-of-circuit authority holding that Burrage is retroactively applicable to cases on collateral review.
The district court dismissed Harrington’s second 2241 petition on initial review without service. The court reasoned that “neither the Supreme Court nor the Sixth Circuit has yet indicated that Burrage is retroactive to cases on collateral review.” As an alternative, the district court also dismissed the petition on the basis that Harrington was not sentenced under the mandatory guidelines that existed prior to United States v. Booker, 543 U.S. 220 (2005).
Harrington appealed to the Sixth Circuit, and argued that Burrage is retroactively applicable on collateral review. The Sixth Circuit held that Harrington did properly petition for relief under 28 U.S.C. 2241, as Harrington met the requirements of the “savings clause.” 28 U.S.C. 2255(e).
In the Sixth Circuit, a petitioner may pass through the savings clause if they are barred from proceeding under section 2255, and “actually innocent.” Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012).
The Sixth Circuit found that Harrington’s claim is properly construed as one of actual innocence. In Burrage, the Supreme Court referred to the death-results enhancement as “an element that must be submitted to the jury and found beyond a reasonable doubt.” 571 U.S. at 210. Thus, the “death-results” enhancement is not a sentencing enhancement, but rather a statutory element of a crime.
The Sixth Circuit further noted that Harrington’s actual innocence claim may have merit. A petitioner may demonstrate actual innocence by:
(1) the existence of a new interpretation of statutory law, (2) which was issued after the petitioner had a meaningful time to incorporate the new interpretation into his direct appeals or subsequent motions, (3) is retroactive, and (4) applies to the merits of the petition to make it more likely than not that no reasonable juror would have convicted him.
Wooten, 677 F.3d at 307-08.
The court found that the first two prongs were satisfied: Burrage is a new interpretation of 21 U.S.C. 841(b)(1) and decided well after Harrington’s 2009 conviction, his 2010 direct appeal, and the one-year window to file a 2255.
Next, the Sixth Circuit held that Burrage is retroactive:
“Substantive decision that ‘narrow the scope of a criminal statute by interpreting its terms’ apply retroactively to cases on collateral review. Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citing Bousley v. United States, 523 U.S. 614, 620-621 (1998)). Burrage fits that bill: because but-for causation is a stricter requirement than, for example, the contributing-cause rule rejected in Burrage, see 571 U.S. at 208, some conduct punished by 21 U.S.C. 841(b)(1) pre-Burrage is no longer covered post-Burrage. At least two of our sister circuits to consider the issue have held that Burrage applies retroactively to cases on collateral review. See Santillana v. Upton, 846 F.3d 779, 783-84 (5th Cir. 2017); Krieger v. United States, 842 F.3d 490, 499-500 (7th Cir. 2016).
“For purposes of motions under 2241, it makes no difference that the Supreme Court itself has not held that Burrage applies retroactively. The rule requiring retroactivity to be determined by the Supreme Court comes from Tyler v. Cain, 533 U.S. 656 (2001), a case that interpreted the statutory limitation set forth in 28 U.S.C. 2244(b)(2) on second-or-successive petitions brought by state prisoners under 28 U.S.C. 2254. There is no comparable limitation on petitions filed under 2241.”
The Sixth Circuit found that Harrington met the first three prongs for demonstrating actual innocence. However, the court declined to determine whether Harrington met the fourth prong that “no reasonable juror would have convicted him, because the petition was dismissed at initial review and there was no evidence before the Sixth Circuit.
Accordingly, the Sixth Circuit remanded the issue to the district court to hold an evidentiary hearing.
Judgment of the district court was vacated, and the case remanded for further proceedings.
JEREMY’S TAKE: This is a great case out of the Sixth Circuit that interprets the savings clause of 28 U.S.C. 2255(e) and retroactivity of Supreme Court decisions. Every circuit has its own savings clause test, and navigating through 2241 proceedings can be extremely complex. If you are seeking assistance with a 2241 petition, please reach out to me at [email protected]
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