In re Franks: Johnson not retroactive for second or successive 2255 ACCA petitioner

In In re: Kurt Franks, No. 15-15456 (Jan. 6, 2016), the Court (2-1) (Martin, J., dissenting) held that an inmate who filed a “second or successive” motion to vacate his sentence under 28 U.S.C. § 2255 could not benefit from the holding in Johnson v. U.S. that the residual clause of ACCA was unconstitutional, because the Supreme Court has not made Johnson retroactive. The Court noted that, in a case involving an offender sentenced under the residual clause of the career offender Guideline, it had held in In re Rivero, 797 F.3d 986 (2015) that Johnson was not retroactive. The Court found the retroactivity analysis “identical” here. In Rivero, the Court had reasoned that Johnson had not “necessarily dictated” that its holding should be applied retroactively. The Court noted that in 28 unpublished cases it had already applied Rivero to an ACCA movant. Dissenting, Judge Martin noted that a Supreme Court decision applies retroactively when a defendant “faces a punishment that the law cannot impose upon him.” Judge Martin stated that Rivero, which involved an offender sentenced under the Sentencing Guidelines, did not extend to an offender sentenced under ACCA. [Query: In Spencer, the Eleventh Circuit held that a claim that an offender was not correctly categorized as a “career offender” under the Guidelines was not the type of claim that was cognizable under § 2255; might this be a basis for distinguishing a § 2255 career offender from a § 2255 ACCA claimant?]. Judge Martin noted that the Court could certify the retroactivity issue to the Supreme Court, or rehear the issue. Judge Martin recognized that in 28 prior unpublished cases the Court had denied relief to claimants like Franks, and added: “Twenty-eight wrongs don’t make a right.”