Burrage Applies Retroactively To Cases On Collateral Review

In Burrage v. United States, 134 S. Ct. 881 (2014), the Supreme Court held that “at least where use of the drug distributed by the defendant is not an independently sufficient cause 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 such use is a but-for cause of the death or injury.”

Tiofilla Santillana filed a 28 U.S.C. 2241 petition challenging her conviction in light of Burrage. The district court dismissed the petition for lack of jurisdiction, finding that the “savings clause” of 28 U.S.C. § 2255 barred her challenge. The Fifth Circuit reversed.

To start, the court rejected district court decisions holding that Burrage is not retroactive because it is based on the Supreme Court’s decisions in Alleyne and Apprendi. “Those (district court) decisions are simply incorrect,” the Fifth Circuit held citing Krieger v. United States, 842 F.3d 490, 499–500 (7th Cir. 2016).

“The Burrage holding is not about who decides a given question (judge or jury) or what the burden of proof is (preponderance versus proof beyond a reasonable doubt)—those questions are the province of Apprendi and Alleyne—but ‘is rather about what must be proved.’  In sum, as a substantive decision narrowing the scope a federal criminal statute, Burrage applies retroactively to cases on collateral review.”

And because the evidence in Santillana’s case tended to show that she was convicted of a non-existent offense, the court held that she had satisfied the requirements of the savings clause and was free to proceed via a 2241 petition.

This is an extremely important habeas decision given the constraints federal prisoners operate under in utilizing § 2241. A § 2241 petition may only be used when the requirements of the “savings clause” of 28 U.S.C. § 2255 are satisfied, which requires a showing that a § 2255 motion would be “inadequate or ineffective” to testy the legality of detention. See: Santillana v. Upton, No. 15-10606 (5th Cir. 2017).

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