Skip to content

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. In sum, as a substantive decision narrowing the scope a federal criminal statute, Burrage applies retroactively to cases on collateral review.

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."

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).  Burrage Applies Retroactively | Collateral Review | Sentencing.net

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

Leave a Comment





Recommended for you

Federal Halfway House – Everything You Need To Know

Over the past several weeks, I have received numerous e-mails and calls from different individuals concerning federal halfway house placements that have been reduced significantly—or denied entirely—by the Federal Bureau of Prisons (“BOP”). What is going on? A variety of things, it seems. I.  Federal Halfway House – A Brief Overview The BOP has long…

The First Step Act Bill Summary Explained : A Comprehensive Analysis

The First Step Act 2018 Bill Summary: On December 21, 2018, the President signed into law The First Step Act 2018, a bipartisan effort to reform the federal criminal justice system. The Law Office of Brandon Sample has assembled this detailed analysis of the First Step Act 2018 to help the public understand the ins…

Sentencing Reform And Federal Prison News – January 2018

We are a week into 2018 and there is much buzz about what lies ahead in the year from the courts, Congress, and the U.S. Sentencing Commission for federal prison and sentencing reform. Here’s a summary of some of the highlights. (a) Congress – Sentencing Reform Different bills remain under consideration, but none have yet…

Scroll To Top