Santillana v. Upton, 15-10606

• Decision Date: 16 January 2017
• Docket Number: No. 15-10606,15-10606
• Citation: 846 F.3d 779
• Parties: Tiofila SANTILLANA, Petitioner–Appellant, v. Jody UPTON, Warden, Federal Medical Center Carswell, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

846 F.3d 779

Tiofila SANTILLANA, Petitioner–Appellant,

v.Jody UPTON, Warden, Federal Medical Center Carswell, Respondent–Appellee.

No. 15-10606

United States Court of Appeals, Fifth Circuit.

Filed January 16, 2017

Tiofila Santillana, Pro Se.

Stephen P. Fahey, Esq., U.S. Attorney's Office, Dallas, TX, for Respondent–Appellee.

Before JOLLY, SMITH, and HIGGINSON, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Tiofila Santillana filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, claiming that she is entitled to relief under Burrage v. United States , ––– U.S. ––––, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). The district court dismissed the petition for lack of jurisdiction, finding that Santillana had not satisfied the "savings clause" of 28 U.S.C. § 2255(e) because Burrage is not retroactively applicable on collateral review. Because Burrage applies retroactively, we reverse and remand.

I.

Santillana was convicted in 2009 of distributing a schedule II controlled substance (methadone ) that resulted in the death of Brandon Moore, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). We described the facts in detail in our opinion from Santillana's direct appeal, United States v. Santillana , 604 F.3d 192, 193–95 (5th Cir. 2010).

In that appeal, Santillana contended, inter alia , that there was insufficient evidence to show that Moore's death "result[ed]" from methadone within the meaning of § 841(b)(1)(C). Santillana conceded that all three medical witnesses, including her own expert, concluded that methadone was at least a contributing cause of death. She maintained, however, that the plain meaning of "results" implies "a stronger degree of causation than mere contribution." She did not explain what that "stronger degree of causation" might be. We affirmed, explaining that even if Santillana were correct, "there was sufficient evidence for a reasonable jury to conclude that Moore's death resulted from his use of methadone under a heightened standard of causation." Santillana , 604 F.3d at 196–97.

Thereafter, in Burrage , the Court "h[eld] 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." Burrage , 134 S.Ct. at 892. Santillana filed a habeas petition under § 2241, alleging that, under Burrage 's interpretation of "results," she is actually innocent of her § 841(b)(1)(C) conviction. The district court dismissed for lack of jurisdiction because it concluded that, absent an explicit holding from the Supreme Court, it lacked the authority to determine whether Burrage was retroactively applicable.

II.

Ordinarily, to attack a conviction collaterally, a federal prisoner can seek relief only by a § 2255 petition. Kenemore v. Roy , 690 F.3d 639, 640 (5th Cir. 2012). But under the "savings clause" of § 2255(e), he may file a § 2241 habeas petition if § 2255 is "inadequate or ineffective to test the legality of his detention." Section 2255 is "inadequate or ineffective" if

(1) the [§ 2241 ] petition raises a claim "that is based on a retroactively applicable Supreme Court decision"; (2) the claim was previously "foreclosed by circuit law at the time when [it] should have been raised in petitioner's trial, appeal or first § 2255 motion"; and (3) that retroactively applicable decision establishes that "the petitioner may have been convicted of a nonexistent offense."

Garland v. Roy , 615 F.3d 391, 394 (5th Cir. 2010) (quoting Reyes – Requena v. United States , 243 F.3d 893, 895 (5th Cir. 2001) ) (first alteration added). "The petitioner bears the burden of demonstrating that the section 2255 remedy is inadequate or ineffective." Pack v. Yusuff , 218 F.3d 448, 452 (5th Cir. 2000).

A.

Although we have not yet considered whether Burrage is applicable retroactively,¹ our caselaw "establishes that new [Supreme Court] decisions interpreting federal statutes that substantively define criminal offenses automatically apply retroactively."² Such interpretative decisions "decid[e] for the entire country how courts should have read the statute since it was enacted." Kenemore , 690 F.3d at 641. They apply retroactively because they "necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal...." Schriro , 542 U.S. at 352, 124 S.Ct. 2519 (quoting Bousley , 523 U.S. at 620, 118 S.Ct. 1604 ) (quotation marks omitted). We have held several such Supreme Court decisions to be retroactive.³

The district court dismissed Santillana's petition because it concluded that it lacked authority to determine whether Burrage was retroactively applicable. It relied on Tyler v. Cain , 533 U.S. 656, 662–63, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001), which held that for a prisoner to file a second or successive habeas petition based on a new rule of constitutional law, the Supreme Court must have held the rule to be retroactive to cases on collateral review. But the holding in Tyler depends on statutory language providing that the "new rule of constitutional law [be] made retroactive to cases on collateral review by the Supreme Court ." 28 U.S.C. § 2244(b)(2)(A) (emphasis added).

In contrast, the retroactivity element of our savings-clause analysis is not tethered to a similar statutory limitation. Our precedent requires only that a § 2241 petition be based on a "retroactively applicable Supreme Court decision," without specifying that the Supreme Court must have made the determination of retroactivity. Garland , 615 F.3d at 394. Indeed, Garland states that Supreme Court decisions that substantively interpret federal statutes "automatically apply retroactively." Id. at 396 (emphasis added). We thus proceed to consider the retroactivity of Burrage .

On its face, Burrage is a substantive decision that interprets the scope of a federal criminal statute. See Krieger v. United States , 842 F.3d 490, 499–500 (7th Cir. 2016) (holding that Burrage is a retroactively applicable, substantive decision); cf. Ragland v. United States , 784 F.3d 1213, 1214 (8th Cir. 2015) (per curiam) (concluding that Burrage challenges are cognizable under § 2255 ).⁴ At issue in Burrage was the meaning of "death or serious bodily injury results." The 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." Burrage , 134 S.Ct. at 892. That holding "narrow[s] the scope of a criminal statute," Schriro , 542 U.S. at 351, 124 S.Ct. 2519, because but-for causation is a stricter requirement than are some alternative interpretations of "results."

Indeed, that was the precise issue in Burrage . There, the Eighth Circuit had decided that a drug needed to be only a "contributory cause" of death, and so had affirmed the sentence under § 841(b)(1)(C).⁵ The government conceded that there was no evidence that the victim would have lived but for his drug use. Burrage , 134 S.Ct. at 892. Because the Eighth Circuit had affirmed "based on a markedly different understanding of the statute," and the government conceded but-for causation, the Court reversed. Id.

Some courts have advanced a different reading of Burrage , interpreting it not as a substantive decision but instead as an application of the procedural rules in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States , ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).⁶ Accordingly, they have held that Burrage is not retroactively applicable.⁷ Those decisions "[are] simply incorrect." Krieger , 842 F.3d at 499. "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." Id. In sum, as a substantive decision narrowing the scope a federal criminal statute, Burrage applies retroactively to cases on collateral review.

B.

The government urges us to affirm the dismissal on the third prong of the savings-clause test. It contends that even if Burrage is retroactively applicable, Santillana cannot meet her burden to show that "[she] may have been convicted of a nonexistent offense." Garland , 615 F.3d at 394 (quotation marks omitted). We disagree.

The government's theory is essentially that the record contains evidence that could support a finding of but-for causation, so Santillana's conviction was proper even in light of Burrage . The government relies on our statement from her direct appeal that "there was sufficient evidence for a reasonable jury to conclude that Moore's death resulted from his use of methadone under a heightened standard of causation." Santillana , 604 F.3d at 196–97. But that statement does not resolve the savings-clause inquiry. As an initial matter, we did not define "heightened ... causation" as but-for causation. To the contrary, we noted that Santillana had not identified what "stronger degree of causation" she was arguing for. Id. at 196. Moreover, we stated only that a reasonable jury could have found heightened causation; we did not hold that it actually did so.

Our precedents make certain that, when determining whether a petitioner can show that he may have been convicted of a nonexistent offense, we must look to what the factfinder actually decided. For example, in Garland , the petitioner raised a claim based on United States v. Santos , 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008), in which the Court held that in certain circumstances, "proceeds" in 18 U.S.C. § 1956 must be defined as "profits."⁸...