High Court Should Take Up Habeas Split: 4th Cir. Judge

The U.S. Supreme Court should take up a criminal case “of significant national importance,” Judge G. Steven Agee of the U.S. Court of Appeals for the Fourth Circuit wrote June 11.

At stake is whether prisoners can take advantage of retroactive changes in the law when traditional habeas corpus review can’t provide relief.

Agee’s statement came as the full Fourth Circuit denied rehearing en banc.

Gerald Wheeler won his case March 28, when a three-judge panel of the court said his claim could go forward after a retroactive change in the law rendered his sentence too high. It would have been too late for him to challenge it, but the panel applied the so-called “savings clause” to help him.

Agee disagrees with the ruling, but voted against rehearing so the justices could take Wheeler’s case “at the earliest possible date in order to resolve an existing circuit split that the panel decision broadens even farther.”

The panel decision had the “most expansive view” of the savings clause among the circuits, Agee said.

He urged the justices to step in and resolve the conflict “so that the federal courts, Congress, the Bar, and the public will have the benefit of clear guidance and consistent results in this important area of law.”

The case is United States v. Wheeler, 4th Cir., No. 16-06073, petition for rehearing en banc denied 6/11/18.