There are several ways to challenge the application of the ACCA in court since the decision in Johnson.
- On direct appellate review. A decision invalidating the ACCA’s residual clause as unconstitutionally vague will apply in any case where the prisoners conviction has not yet become final
- Prisoners on collateral review per 28 USC 2255. It is our opinion that the residual clause as void for vagueness would be a constitutional decision, albeit invalidating the statute per U.S. Supreme court cases, Teague and Sullivan.
- This decision will not be retroactive to career offender guidelines or applicable there.
- Successive habeas where a prisoners case has become final after a first 2255 petition. “A new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” may file a successive 2255 petition. This remedy may only be available on declaration of the Supreme Court that the Johnson case is applicable retroactively. However relief may be sought pursuant to 28 USC 2241 where the 2255 is inadequate or ineffective to challenge the constitutionality of a prior conviction under the statute. A challenge to the statute is the distinctive quality of litigation necessary in any 2241. However narrow defendants should be able to request relief where they were subjected to an unconstitutionally vague mandatory sentencing enhancement that resulted in a sentence that exceed the statutory maximum for their offense of conviction but for the ACCA residual clause violation. (This option is less clear on whether it will lead to relief)