Reply Brief — Bruce Westbrooks, Warden, Petitioner v. William G. Allen

Supreme Court briefNov 20, 2017

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NO. 17-445

In the Supreme Court of the United States

BRUCE WESTBROOKS, Warden,

Petitioner,

WILLIAM G. ALLEN,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

REPLY BRIEF OF PETITIONER

HERBERT H. SLATERY III

Attorney General & Reporter

ANDRÉE S. BLUMSTEIN

Solicitor General

NICHOLAS W. SPANGLER

Assistant Attorney General

Counsel of Record

P.O. Box 20207

Nashville, Tennessee 37202-0207

Phone: (615) 741-3486

Fax: (615) 532-4892

Nick.Spangler@ag.tn.gov

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

REPLY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

IMMEDIATE REVIEW IS ESSENTIAL TO

PREVENT IRREPARABLE HARM TO THE

PETITIONER IN HAVING TO DEFEND

AGAINST A PATENTLY ABUSIVE CLAIM.

..................................... 1

II.

THE ABUSE-OF-THE-WRIT DOCTRINE IS

PROPERLY BEFORE THIS COURT

BECAUSE THE PARTIES HAVE

ADDRESSED THE QUESTION AND THE

COURT OF APPEALS SQUARELY

DECIDED IT. . . . . . . . . . . . . . . . . . . . . . . . . . 3

III.

RESPONDENT MINIMIZES THE ROBUST

CIRCUIT SPLIT AND THE NEED FOR

CLARIFICATION BY THIS COURT. . . . . . . 4

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TABLE OF AUTHORITIES

CASES

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) . . . . . . . . . . . . . . . . . . . . . 1, 2

Davis v. Fechtel,

150 F.3d 486 (5th Cir. 1998) . . . . . . . . . . . . . . . . 2

Fed. Power Comm’n v. Transcon. Gas Pipe Line

Corp.,

423 U.S. 326 (1976) . . . . . . . . . . . . . . . . . . . . . . . 2

Frisby v. Schultz,

487 U.S. 474 (1988) . . . . . . . . . . . . . . . . . . . . . . . 1

Goldblum v. Klem,

510 F.3d 204 (3d Cir. 2007) . . . . . . . . . . . . . . . . . 2

In re Hensley,

836 F.3d 504 (5th Cir. 2016) . . . . . . . . . . . . . . . . 5

Johnson v. Duffy,

591 F. App’x 629 (9th Cir. 2015) . . . . . . . . . . . . . 6

Johnson v. United States,

623 F.3d 41 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . 4

In re Lampton,

667 F.3d 585 (5th Cir. 2012) . . . . . . . . . . . . . . 4, 5

Land v. Dollar,

330 U.S. 731 (1947) . . . . . . . . . . . . . . . . . . . . . . . 1

Larson v. Domestic and Foreign Commerce Corp.,

337 U.S. 682 (1949) . . . . . . . . . . . . . . . . . . . . . . . 1

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) . . . . . . . . . . . . . . . . . . . . . . . 4

iii

Magwood v. Patterson,

561 U.S. 320 (2010) . . . . . . . . . . . . . . . . . . . 4, 5, 6

Marmolejos v. United States,

789 F.3d 66 (2d Cir. 2015) . . . . . . . . . . . . . . . . . . 5

In re Martin,

398 F. App’x 326 (10th Cir. 2010) . . . . . . . . . . 5, 6

New Orleans v. Dukes,

427 U.S. 297 (1976) . . . . . . . . . . . . . . . . . . . . . . . 1

In re Parker,

575 F. App’x 415 (5th Cir. 2014) . . . . . . . . . . . . . 5

United States v. Jones,

796 F.3d 483 (5th Cir. 2015) . . . . . . . . . . . . . . . . 6

United States v. Lopez,

577 F.3d 1053 (9th Cir. 2009) . . . . . . . . . . . . . . . 2

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) . . . . . . . . . . . . . . . . . . . . . . . 1

White v. United States,

745 F.3d 834 (7th Cir. 2014) . . . . . . . . . . . . . . . . 6

STATUTES

18 U.S.C. § 3582(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

Shapiro, Stephen, et al., Supreme Court Practice,

(10th Ed. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

IMMEDIATE REVIEW IS ESSENTIAL TO

PREVENT IRREPARABLE HARM TO THE

PETITIONER IN HAVING TO DEFEND

AGAINST A PATENTLY ABUSIVE CLAIM.

Respondent contends that certiorari should be

denied because the case comes to this Court “in an

interlocutory posture.” (BIO, 13.) But that is no

reason to deny review here. 28 U.S.C. § 1254(1) gives

this Court discretionary and unlimited jurisdiction over

cases in the federal courts of appeals both “before or

after rendition of a judgment or decree.” And when

there is a “clear-cut issue of law that is fundamental to

the further conduct of the case,” this Court will grant

review despite an interlocutory posture. Shapiro,

Stephen, et al., Supreme Court Practice, § 4.18 (10th

Ed. 2013). For example, the Court has granted review

of interlocutory decisions to resolve important

jurisdictional questions, Land v. Dollar, 330 U.S. 731

(1947), Larson v. Domestic and Foreign Commerce

Corp., 337 U.S. 682 (1949), and to hasten or finally

resolve litigation, Wal-Mart Stores, Inc. v. Dukes, 564

U.S. 338 (2011) (reversing class certification order).

Moreover, when “the question presented is of

substantial importance, and . . . further proceedings

below would not likely aid [this Court’s] consideration

of it,” the Court may “avoid the finality issue simply by

granting certiorari.” Frisby v. Schultz, 487 U.S. 474,

479 (1988). The potential to “obviate the need for

further proceedings” is yet another reason cited for

certiorari review of decisions involving a remand. New

Orleans v. Dukes, 427 U.S. 297, 302 (1976) (citing Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-478,

480, 485-486 (1975)). And finally, the “immediate and

irreparable” effect of an interlocutory order may also

warrant immediate review. Fed. Power Comm’n v.

Transcon. Gas Pipe Line Corp., 423 U.S. 326, 331

(1976).

These considerations all weigh heavily in favor of

review here. The question presented is substantial,

involving an important jurisdictional issue and a

circuit split that respondent acknowledges. (BIO, 1619.) Immediate review of this issue is needed to

prevent irreparable harm to petitioner. The statutory

prohibition on second or successive applications and

the abuse-of-the-writ doctrine both independently serve

an essential gatekeeping function. See United States v.

Lopez, 577 F.3d 1053, 1060-68 (9th Cir. 2009) (“[N]o

court has ever held AEDPA expands the availability of

habeas relief or allows federal courts to consider claims

that would have been barred under the abuse-of-thewrit doctrine.”); Goldblum v. Klem, 510 F.3d 204, 216

n.8 (3d Cir. 2007) (noting that AEDPA gatekeeping

scheme did not supplant the abuse-of-the-writ doctrine

but rather built on it); Davis v. Fechtel, 150 F.3d 486,

491 (5th Cir. 1998) (“[W]e need not determine whether

the gate-keeping provisions of the AEDPA apply to the

instant petition . . . because it clearly constitutes an

abuse of the writ either under our pre- or post-AEDPA

jurisprudence.”) But that function is nullified if

petitioner is forced to re-defend the merits of a claim

before challenging whether those gates were properly

lifted.

Finally, remand proceedings will not aid review at

a later time. The threshold procedural question

presented is a purely legal one. It will not benefit from

further record development or briefing in the district

court. Indeed, respondent will most likely assert that

the question is inappropriate for further consideration

on remand, having already been decided by the court of

appeals. This Court should resolve the question now

because it is fully ripe, and immediate review will

obviate the need for further proceedings on a patently

abusive claim.

II.

THE ABUSE-OF-THE-WRIT DOCTRINE IS

PROPERLY BEFORE THIS COURT

BECAUSE THE PARTIES HAVE

ADDRESSED THE QUESTION AND THE

COURT OF APPEALS SQUARELY

DECIDED IT.

Respondent also contends that petitioner has

waived arguments not offered as a basis for rehearing

in the court of appeals or pressed in the district court.

(BIO, 14-16.) But respondent cites no authority for the

proposition that petitioner has waived arguments not

first submitted for rehearing. Indeed, he correctly

acknowledges that “a petitioner need not seek

rehearing to seek certiorari.”

(BIO, 15.)

And

petitioner’s decision to seek redress in this Court

rather than on rehearing in the court of appeals has no

bearing on the strength of the petition.

The

significance of the question presented should not be

measured by petitioner’s considered and informed

decision not to seek rehearing. The appropriate

measures are the existing circuit split and the need to

conserve state and federal resources that abusive

claims, like respondent’s claim here, would otherwise

consume.

Moreover, when petitioner argued in the court of

appeals that the grand-jury claim was an abuse of the

writ, respondent did not assert waiver. Rather, he

addressed the argument on the merits, and the court of

appeals squarely decided the issue, concluding that

“the abuse-of-the-writ doctrine did not permit the

district court to dismiss this case as second or

successive.” (App. 9 n.12.) The issue was thus both

pressed and passed upon below, either of which was

sufficient to preserve the issue for this Court’s review.

See, e.g., Lebron v. Nat’l R.R. Passenger Corp., 513 U.S.

374, 379 (1995).

III.

RESPONDENT MINIMIZES THE ROBUST

CIRCUIT SPLIT AND THE NEED FOR

CLARIFICATION BY THIS COURT.

Respondent also contends that petitioner “is

misleading [about] the extent of any circuit split.”

(BIO, 16.) But in a prior petition to this Court, he

acknowledged a “robust circuit conflict” that “needs to

be resolved.” Pet. for Cert at 6, Allen v. Carpenter,

No. 14-6304 (U.S. Sept. 10, 2014). In any event, the

decisions upon which petitioner relies evince a clear

need for guidance from this Court about the full reach

of Magwood.

The Lampton decision situates the Fifth Circuit

apart from the majority of circuits insofar as the

determination of successiveness in that case was made

despite the Second Circuit’s contrary holding in

Johnson v. United States, 623 F.3d 41 (2d Cir. 2010), on

“virtually identical facts.” In re Lampton, 667 F.3d

585, 589 (5th Cir. 2012). The Lampton court took a

component-focused approach by distinguishing between

individual counts of the singular judgment under

attack. Id. at 588-589. To be sure, this case concerns

a modification to the sentencing component of the

judgment rather to an individual count component of

the judgment. But the reasoning in Lampton is

sufficiently nuanced to highlight a distinction from the

majority approach.

The Hensley decision further demonstrates the Fifth

Circuit’s unique approach to applying Magwood.

Hensley was convicted by a jury of armed robbery and

sentenced to 60 years. In re Hensley, 836 F.3d 504, 506

(5th Cir. 2016). The state trial court later found

Hensley to be a habitual offender and sentenced him to

life imprisonment. Id. The federal habeas court later

vacated Hensley’s life sentence and re-imposed his 60year sentence. Id. Thereafter, Hensley sought

authorization to file a second habeas petition based on

this modification, but the Fifth Circuit concluded that

the sentence “adjustment” did not constitute a new

intervening judgment because it did not result from

anything resembling a “full resentencing.” Id. The

modification to respondent’s judgment involves a

similar sort of technical sentence adjustment rather

than a full resentencing. Thus, the Fifth Circuit’s focus

on “the impetus and effect of the amended judgment”

when applying Magwood cannot be discounted. In re

Parker, 575 F. App’x 415, 418 (5th Cir. 2014).

The Tenth Circuit’s decision in Martin further

highlights the challenge in identifying judgment

modifications that will qualify as new judgements for

Magwood’s purposes. To be sure, the Tenth Circuit is

not alone in concluding that clerical-error corrections

do not result in new judgments. See Marmolejos v.

United States, 789 F.3d 66, 71-72 (2d Cir. 2015);

Johnson v. Duffy, 591 F. App’x 629, 629-630 (9th Cir.

2015); In re Martin, 398 F. App’x 326, 327 (10th Cir.

2010). But other circuits have similarly refused to

apply Magwood’s new-judgment rule to technical

sentence modifications under 18 U.S.C. § 3582(c). See

United States v. Jones, 796 F.3d 483, 485-487 (5th Cir.

2015) (collecting cases); White v. United States, 745

F.3d 834, 836-837 (7th Cir. 2014). These decisions

demonstrate the need for clarification about the limits

of Magwood’s reach. They also undermine respondent’s

contention that his technical sentence modification

from 99 years to life removed important statutory and

common-law guards against the reconsideration of a

meritless claim attacking his undisturbed conviction.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,