The Force Clause Post-Borden Part 2: Application of Borden to Cases on Collateral Review
In Borden v. United States, 141 S. Ct. 1817 (2021), the Supreme Court held that a criminal offense that requires only a mens rea of recklessness cannot count as a "violent felony" under the Armed Career Criminal Act's (ACCA's) force clause or elements clause. There is a strong argument that Borden announced a new substantive rule that applies retroactively to cases on collateral review because it is substantive in that it alters the range of conduct or class of persons punished by ACCA. Cf. Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (holding the rule announced in Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA’s residual clause), is substantive and applies retroactively). The one-year limitation period for filing a § 2255 motion to vacate based on Borden will run from the date on which the Supreme Court decided Borden (June 10, 2021), not from the date on which the Supreme Court initially determines that Borden applies retroactively. This webinar will analyze Borden and its application to the ACCA and other cases that are final on direct review, i.e., post-conviction relief under 28 U.S.C. §§ 2255 & 2241. In doing so, this session will pick up where our first Borden webinar on August 25, 2021 left off.
Paresh Patel is currently the Appellate Chief at the Office of the Federal Public Defender for the District of Maryland. He has been at the Federal Public Defender since 2003. Before then, he worked as a staff attorney at the Public Defender Service in Washington, D.C. and the Office of the Appellate Defender in New York, New York. In 1999-2000, he clerked for the Honorable Ancer L. Haggerty of the United States District Court for the District of Oregon in Portland. Paresh earned his J.D. from American University in 1996, and he received his undergraduate degree from the University of Southern California in 1993.
Erin Rust was counsel of record in United States v. Borden, 141 S. Ct. 1817 (2010), and is currently an Assistant Federal Defender serving in the Appellate Unit at Federal Defender Services of Eastern Tennessee, Inc. She has been with Federal Defender Services since 2014 handling retroactive/post-conviction cases and district court cases in the Trial Unit before transitioning to appeals. Previously she was in private practice. Erin earned her J.D. from Washington University in St. Louis in 2010, and her undergraduate degree from Maryville College in 2006.