Amicus Curiae Brief — Gregory Dean Banister, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No. 18-6943

IN THE

Supreme Court of the United States

________________

GREGORY DEAN BANISTER,

Petitioner,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS

DIVISION,

Respondent.

________________

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

________________

BRIEF OF NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

________________

Barbara E. Bergman

Counsel of Record

Co-chair, Amicus Curiae Committee

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS

1201 Speedway Blvd.

Tucson, AZ 85721

(520) 621-3984

bbergman@email.arizona.edu

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... iii

INTEREST OF AMICUS CURIAE .......................... 1

SUMMARY OF ARGUMENT................................... 2

ARGUMENT ............................................................. 4

I.

A Rule 59 Motion Is “Part And Parcel” Of

A Habeas Petitioners “One Full

Opportunity” To Litigate A First Federal

Habeas Petition. ................................................. 4

II. The Fifth Circuit’s Rule Leads To

Inefficient Judicial Administration Of

Habeas Petitions And Unfair Results For

Habeas Petitioners. ............................................ 5

A. Rule 59 motions allow district courts to

correct their own errors before

judgment becomes final, thus avoiding

unnecessary reversals and unfair

results. ........................................................... 6

1. Peterkin v. Horn ....................................... 6

2. Knish v. Stine ........................................... 8

3. Walker v. Carroll.................................... 10

B. Rule 59 motions also allow district

courts to clarify their own orders even

where they continue to deny relief,

thus avoiding unnecessary remands. ......... 12

1. Simpson v. Norris .................................. 13

2. Vermillion v. Levenhagen ...................... 15

ii

3. Ferguson v. McKune .............................. 17

4. Morrow v. Harkleroad ........................... 20

C. Eliminating Rule 59 motions would

create additional burdens for the

courts of appeals.......................................... 20

1. Rivera v. Dretke ..................................... 21

2. Belasco v. Bidden ................................... 22

3. Koumjian v. Quarterman ...................... 23

D. Recharacterizing Rule 59 motions as

unauthorized second or successive

petitions would deprive many

petitioners of the opportunity to appeal

in their first federal habeas

proceedings. ................................................. 24

CONCLUSION ........................................................ 26

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Atkins v. Virginia,

536 U.S. 304 (2002) ..............................................13

Belasco v. Bidden,

89 F. App’x 896 (5th Cir. 2004) .....................22, 23

Blystone v. Horn,

664 F.3d 397 (3d Cir. 2011) ...................................5

Elwood v. Jeter,

386 F.3d 842 (8th Cir. 2004)..................................9

Estelle v. Gamble,

429 U.S. 97 (1976) ................................................12

Fed. Express Corp. v. Holowecki,

552 U.S. 389 (2008) ..............................................12

Ferguson v. Koerner,

131 F. Supp. 2d 1208 (D. Kan. 2001) ..................19

Ferguson v. McKune,

55 F. Supp. 2d 1189 (D. Kan. 1999) ..............17, 18

Ferguson v. McKune,

229 F.3d 1163 (10th Cir. 2000)................ 17, 18, 19

Gonzalez v. Crosby,

545 U.S. 524 (2005) .................................... 5, 12, 19

iv

Howard v. United States,

533 F.3d 472 (6th Cir. 2008)............................5, 21

Johnson v. United States,

135 S. Ct. 2551 (2015)..........................................25

Knish v. Stine,

347 F. Supp. 2d 682 (D. Minn. 2004) ................8, 9

Koumjian v. Quarterman,

325 F. App’x 321 (5th Cir. 2009) .........................23

Morrow v. Harkleroad,

258 F. Supp. 2d 418 (W.D.N.C. 2003) .................20

Morrow v. Harkleroad,

77 F. App’x 672 (4th Cir. 2003) ...........................20

Peterkin v. Horn,

179 F. Supp. 2d 518 (E.D. Pa. 2002) .................6, 7

Rivera v. Dretke,

125 F. App’x 527 (5th Cir. 2005) .........................21

Simpson v. Norris,

490 F.3d 1029 (8th Cir. 2007)........................13, 14

Simpson v. Norris,

No. 5:04CV00429 JLH, 2006 WL

1520628 (E.D. Ark. May 30, 2006) ......................13

Simpson v. Norris,

No. 5:04CV00429 JLH, 2009 WL

2985837 (E.D. Ark. Sept. 16, 2009) .....................14

v

United States v. Patton,

750 F. App’x 259 (5th Cir. 2018) ...................25, 26

Urinyi v. United States,

607 F.3d 318 (2d Cir. 2010) ...................................5

Vermillion v. Levenhagen,

519 F. App’x 944 (7th Cir. 2013) ...................15, 16

Vermillion v. Levenhagen,

No. 3:12-cv-00150-PS (N.D. Ind. May 22,

2012), Doc. 6 ...................................................15, 16

Walker v. Carroll,

No. CIV.A. 02-325-GMS, 2003 WL

1700379 (D. Del. Mar. 24, 2003) ...................10, 11

Welch v. United States,

136 S. Ct. 1257 (2016)..........................................25

White v. New Hampshire Dep’t of

Employment Sec.,

455 U.S. 445 (1982) ................................................4

Statutes & Rules

Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. No. 104132, 110 Stat. 1214 ................................................4

28 U.S.C. § 2241 ...............................................9, 22

28 U.S.C. § 2244(a) ..............................................10

28 U.S.C. § 2244(b) ................................................4

vi

28 U.S.C. § 2244(d) ..............................................11

28 U.S.C. § 2253(c) .................................................4

28 U.S.C. § 2255 .............................................25, 26

28 U.S.C. § 2255(h) ..............................................21

Rule 11(b) of the Rules Governing Section 2254 Cases in the United States

District Courts ..................................................5

Fed. R. App. P. 4...................................... 6, 7, 8, 15, 26

Fed. R. App. P. 4(a) .....................................................5

Fed. R. App. P. 4(a)(1)(A) ............................................5

Fed. R. App. P. 4(a)(4)(A)(iv) ................................5, 24

Fed. R. Civ. P. 59 ............................................... passim

Fed. R. Civ. P. 59(e) .......................................... passim

Other Authorities

Brief of Appellant, Vermillion, No. 12-2436

(7th Cir. Nov. 1, 2012), Doc. 13 ...........................17

H.R. Rep. No. 104-518 (1996) (Conf. Rep.) ...............24

Nancy J. King, et al., Final Technical Report: Habeas Litigation in U.S. District

Courts (2007), https://tinyurl.com/y3fgj33a ..............................................11

INTEREST OF AMICUS CURIAE1

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary professional bar association that works on behalf of criminal

defense attorneys to ensure justice and due process

for those accused of crime or misconduct. NACDL was

founded in 1958. It has a nationwide membership of

many thousands of direct members, and up to 40,000

with affiliates. NACDL’s members include private

criminal defense lawyers, public defenders, military

defense counsel, law professors, and judges. NACDL

is the only nationwide professional bar association for

public defenders and private criminal defense lawyers. NACDL is dedicated to advancing the proper, efficient, and fair administration of justice. NACDL

files numerous amicus briefs each year in the U.S. Supreme Court and other federal and state courts, seeking to provide amicus assistance in cases that present

issues of broad importance to criminal defendants,

criminal defense lawyers, and the criminal justice

system as a whole.

NACDL has a particular interest in ensuring that

habeas petitioners have a full and fair opportunity to

have their first federal habeas petitions decided by

the courts. Because the Fifth Circuit’s rule would deprive petitioners of a critical portion of their first habeas proceeding—and, in turn, would jurisdictionally

1 The parties have consented to the filing of this amicus

brief. No counsel for a party authored the brief in whole or in

part. No party, counsel for a party, or any person other than

amici and their counsel made a monetary contribution intended

to fund the preparation or submission of the brief.

2

bar petitioners like Mr. Banister from appealing the

denial of even their first habeas petitions—NACDL

urges the Court to reject the Fifth Circuit’s position.

SUMMARY OF ARGUMENT

A timely Rule 59(e) motion and a notice of appeal

are critical parts of federal habeas petitioners’ first

federal habeas proceedings. Nothing in AEDPA’s text

abrogates the Federal Rules allowing a district court

to correct its own errors immediately following the entry of judgment and tolling the time to appeal while a

district court considers doing so.

The Fifth Circuit’s rule, however, treats Rule

59(e) motions as unauthorized second or successive

habeas petitions. That unduly cuts short petitioners’

one full and fair opportunity to seek federal habeas

relief: It deprives them of the final procedural step

that the Rules afford them in district court, and it

means that petitioners like Mr. Banister will find

their later appeals time-barred because their Rule 59

motions—which the Rules had informed them would

toll the time to appeal—are later recharacterized as

something else.

The practical effect of the Fifth Circuit’s rule is to

make habeas proceedings less efficient for the federal

courts and less fair to habeas petitioners. That is so

for four reasons, as the examples summarized in this

brief demonstrate.

First, district courts do grant Rule 59 motions in

habeas cases to reach a different result. That is often

because habeas petitioners, who are unrepresented in

3

the vast majority of cases, only come to learn that the

district court has misunderstood some critical detail

of their case when they read the court’s order denying

relief; very rarely are there any hearings or interim

orders that would give them an opportunity to clarify

anything for the district court earlier on. So Rule 59

motions play a particularly important role in habeas

cases. They are part of petitioners’ one full opportunity to have their claims heard and decided accurately and fairly.

Second, even where district courts deny Rule 59

motions, they often expand their own orders to account for previously overlooked issues or authority

that petitioners emphasized in their Rule 59 motions.

That “clean-up” step helps to sharpen issues for appeal and ensure that petitioners have been heard on

all their claims, even if they do not succeed.

Third, and related, Rule 59 motions help preempt

unnecessary appeals. Where a district court makes a

clear mistake or fails to address an important point in

a habeas petition, it can easily correct the error itself

on a Rule 59 motion. But if Rule 59 motions are effectively disallowed in habeas cases, then petitioners

will be left to point out those obvious errors on appeal,

leading to avoidable remands. The Fifth Circuit’s rule

thus disserves judicial economy by shifting more work

to the courts of appeals.

Fourth, some petitioners, like Mr. Banister, might

inadvertently forfeit their right to appeal at all. Petitioners who rely on the Federal Rules’ plain text

would expect that their Rule 59 motions toll the time

to appeal, and then discover only once it is too late

4

that their appeals are untimely. Petitioners would

lose out on meritorious claims in their first federal habeas petitions. Nothing in AEDPA commands that

unfair result.

ARGUMENT

I.

A Rule 59 Motion Is “Part And Parcel” Of A

Habeas Petitioners “One Full Opportunity”

To Litigate A First Federal Habeas Petition.

The Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214, imposes strict limits on “second or successive”

habeas petitions. 28 U.S.C. § 2244(b). But AEDPA did

not limit petitioners’ right to see their first habeas petitions through to the end.

The “end” in a first habeas proceeding, as in general civil proceedings, extends through the filing of a

timely Rule 59(e) motion to alter or amend the judgment, and then a request for review by a federal court

of appeals. See Pet’r Br. 21-27. That is because Rule

59(e) codifies a district court’s traditional, inherent

authority “to rectify its own mistakes in the period immediately following the entry of judgment,” and

AEDPA’s text says nothing to abrogate that power in

this context. White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 450 (1982). Similarly,

AEDPA expressly preserves habeas petitioners’ ability to seek appellate review of the denial of a habeas

petition. Although AEDPA modifies standard appellate review procedures by requiring petitioners to

make a threshold showing to obtain a certificate of appealability, see 28 U.S.C. § 2253(c), it expressly adopts

5

Rule 4(a) of the Federal Rules of Appellate Procedure

in habeas cases. See Rule 11(b) of the Rules Governing

Section 2254 Cases in the United States District

Courts. Rule 4(a) provides that a timely Rule 59 motion tolls the time to appeal. Fed. R. App. P. 4(a)(1)(A)

(notice of appeal due within 30 days from a judgment

or order in a civil case); Fed. R. App. P. 4(a)(4)(A)(iv)

(timely Rule 59 motion tolls the time to appeal).

Accordingly, in habeas cases and traditional civil

cases alike, “a timely Rule 59(e) motion suspends the

finality of the judgment by tolling the time for appeal.” Blystone v. Horn, 664 F.3d 397, 414 (3d Cir.

2011). And, “unlike a Rule 60(b) motion, it is neither

a collateral attack on the initial habeas judgment, nor

a new collateral attack on the underlying criminal

judgment—rather it is part and parcel of the petitioner’s ‘one full opportunity to seek collateral review.’” Id. (quoting Urinyi v. United States, 607 F.3d

318, 320 (2d Cir. 2010), and distinguishing Gonzalez

v. Crosby, 545 U.S. 524 (2005)); accord Howard v.

United States, 533 F.3d 472, 474-75 (6th Cir. 2008);

Pet’r Br. 30-33. A timely appeal filed following denial

of a Rule 59(e) motion is similarly “part and parcel” of

a petitioner’s one full opportunity to bring a first habeas petition. See Pet’r Br. 16.

II. The Fifth Circuit’s Rule Leads To Inefficient

Judicial

Administration

Of

Habeas

Petitions And Unfair Results For Habeas

Petitioners.

The Fifth Circuit’s rule thus denies habeas petitioners the “full” opportunity that the Rules afford

them to bring their first habeas petition. The practical

6

consequence of that rule is to make habeas proceedings less efficient. The Fifth Circuit’s approach deprives district courts of the opportunity to correct

their own obvious errors, teeing up avoidable appeals

instead. And it unfairly bars first federal habeas appeals by unwary petitioners, like Mr. Banister, who

rely on Federal Rule of Appellate Procedure 4’s plain

text rather than an atextual judicial interpretation of

AEDPA.

A. Rule 59 motions allow district courts to

correct their own errors before

judgment becomes final, thus avoiding

unnecessary

reversals

and

unfair

results.

First, as the examples below show, district courts

regularly rely on Rule 59 motions to change the result

of an initial ruling on a habeas petition before proceedings in district court are through. The Fifth Circuit’s rule would eliminate this important final step

at the end of a habeas petitioner’s one full and fair

opportunity to present his claims in district court.

1.

Peterkin v. Horn

Otis Peterkin’s habeas petition illustrates the importance of Rule 59 motions in petitioners’ one full

and fair opportunity to present their claims. Peterkin

v. Horn, 179 F. Supp. 2d 518 (E.D. Pa. 2002).

Peterkin was convicted of two counts of capital

murder, as well as robbery and possession of an instrument of crime, and then sentenced to death. Id. at

519. He filed a habeas petition in district court. The

7

court granted the petition in part, agreeing with several of Peterkin’s claims of constitutional error. The

court denied Peterkin’s Eighth and Fourteenth

Amendment claims, however, which arose from the

trial court’s failure to properly instruct jurors on aggravating and mitigating circumstances. The district

court reasoned that Peterkin failed to meet his burden of rebutting the presumption that the trial court’s

instructions were correct. Id. at 521.

Peterkin moved for reconsideration under Rule

59(e). The district court granted the motion for reconsideration, determining that its initial ruling erred in

applying the law and neglecting to examine the jury

instructions as a whole, and in failing to consider a

Third Circuit decision issued less than one week earlier, which determined a “nearly identical” jury instruction was unconstitutional. Id. at 521. Thus, the

Rule 59 motion led to a single, final order by the district court granting Peterkin habeas relief on all

claims. Id. at 523.

Now consider what would have happened under

the Fifth Circuit’s rule. Peterkin’s meritorious Rule

59(e) motion would have been deemed to “attack[] the

federal court’s previous resolution of the claim on the

merits” and thus been “construed as a successive habeas petition since alleging that the court erred in

denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled

to habeas relief.” J.A. 305 (internal citation and quotation marks omitted). Meanwhile, recharacterizing

the motion as a filing that no longer tolls time under

Federal Rule of Appellate Procedure 4 would mean

8

that the time to appeal to the Third Circuit would

have expired, as it did in this case. So, assuming Peterkin relied on Rule 4’s plain text and the ordinary

operation of civil litigation, he would not have even

had the opportunity for the Third Circuit to apply its

recent, on-point precedent to his case.

Peterkin’s alternative option would have carried

its own significant problems. He could have appealed

immediately after the district court’s dismissal, rather than give the district court an opportunity to correct its error and consider the recent relevant

authority. Perhaps the Third Circuit would have ultimately given him the same relief the district court did

under Rule 59. But it would have come after much additional delay, and after shifting to the court of appeals the burden of considering an issue the district

court could have easily resolved. That outcome would

have added time, complexity, and additional demands

on judicial resources, while doing nothing to advance

Congress’s aims in enacting AEDPA or to promote

justice for petitioners.

2.

Knish v. Stine

Steven Allen Knish’s case similarly illustrates

how Rule 59 motions promote both judicial efficiency

and justice for petitioners.

The district court reconsidered its initial denial

of Knish’s habeas petition on jurisdictional grounds in

light of recent Circuit Court authority granting habeas relief in a similar case. Knish v. Stine, 347 F.

Supp. 2d 682 (D. Minn. 2004).

9

Knish pleaded guilty to tax evasion and aiding

and abetting charges and was sentenced to 24 months

in prison. Id. at 684. Prison staff informed Knish that

he would be recommended for Community Corrections Center (CCC) placement for the last ten percent

of his sentence, which they believed was the maximum legally permissible duration of CCC placement.

Knish filed a habeas petition under 28 U.S.C. § 2241

to claim that the Bureau of Prisons (BOP) policy capping the time that could be spent in a CCC was based

on an incorrect understanding of the relevant statute.

Id.

The district court dismissed Knish’s petition for

lack of jurisdiction because the requested relief affected the place or conditions of confinement, rather

than the duration of a sentence. Id. at 686. But, four

days earlier, the Eighth Circuit had granted habeas

relief in a nearly identical claim. Elwood v. Jeter, 386

F.3d 842 (8th Cir. 2004).

Knish then filed a Rule 59(e) motion to alter or

amend the order dismissing his petition, arguing the

court’s decision was erroneous in light of the Eighth

Circuit decision in Elwood. Knish, 347 F. Supp. 2d at

686. The district court agreed that Elwood provided a

basis to reconsider the dismissal. Considering the

merits, the court then held the BOP policy was indeed

contrary to law, and that the petitioner was entitled

not to be subjected to a BOP policy predicated on an

erroneous statutory interpretation. The court granted

Knish’s petition for habeas relief and directed the

BOP to promptly reconsider Knish for placement in a

CCC according to a correct interpretation of the applicable statute.

10

If the Fifth Circuit’s rule applied and Knish’s Rule

59(e) motion had been deemed to challenge the merits, rather than present a purely procedural question,

his motion might have been deemed an invalid second

habeas petition under 28 U.S.C. § 2244(a), and Knish

might have lost his opportunity to then file any appeal. Alternatively, if Knish had perceived the risk

that his motion might be recharacterized, he would

sensibly have forgone the motion in favor of an appeal

to the Eighth Circuit, which would have reversed on

grounds that the district court was able to reach more

quickly and efficiently. The Rule 59 motion thus saved

the parties and the court what would have been an

entirely unnecessary appeal, and allowed the district

court to issue a single, final judgment that considered

the Eighth Circuit’s relevant precedent.

3.

Walker v. Carroll

The clarifying function of motions for reconsideration is particularly important for the large majority

of habeas petitioners who are unrepresented by counsel. Levaughn Walker’s Rule 59 motion is illustrative.

See Walker v. Carroll, No. CIV.A. 02-325-GMS, 2003

WL 1700379, at *1 (D. Del. Mar. 24, 2003).

Walker was convicted of murder when he was 16

and began serving a 38-year sentence. He filed a habeas petition on April 30, 2002, which the court dismissed as untimely because it was filed beyond the

August 10, 2001, expiration of AEDPA’s statute of

limitations. Id. at *1, *3. Walker promptly filed a motion for reconsideration, arguing his petition was

timely because he had previously filed a habeas peti-

11

tion on March 23, 2001, and withdrawn it on September 21, 2001, pursuant to a Third Circuit procedure

(the “AEDPA Election Form”) that he believed gave

him the opportunity to re-file it within one year of the

denial of his petition. Walker’s understanding was incorrect; the AEDPA Election Form provided that

Walker could withdraw and re-file a petition for habeas corpus within the one-year period defined by 28

U.S.C. § 2244(d). Id. at *4. But, while the district

court found no error in its original ruling dismissing

Walker’s petition, it noted the difficulty even judges

and attorneys face in calculating the time period set

forth in section 2244(d), and concluded the AEDPA

Election Notice failed to “sufficiently warn the pro se

petitioner that the one-year period does not re-commence on the date of the order.” Id. The court therefore granted the motion for reconsideration and

agreed to review the habeas petition on the merits. Id.

The Rule 59 motion was necessary because

Walker had “failed to mention” his earlier, timely

(and then withdrawn) habeas petition at first. Id. at

*3. The court cited Third Circuit precedent requiring

courts “to avoid th[e]s unfairness of a pro se petitioner

losing the right to have a single habeas petition adjudicated,” so it deemed Rule 59 relief “consistent with

the ... practices of assisting pro se petitioners.” Id. at

*4 (internal brackets omitted).

Walker’s situation is hardly uncommon. The vast

majority of habeas petitioners lack counsel. See

Nancy J. King, et al., Final Technical Report: Habeas

Litigation in U.S. District Courts (2007) at 8,

https://tinyurl.com/y3fgj33a (in 93% of noncapital

cases, the petitioner had no counsel, approximately

12

the same proportion as prior to AEDPA). For those

who are unrepresented, a single Rule 59 motion is

simply part of the iterative process district courts depend upon to ensure that pro se prisoners are given

one full and fair opportunity to have their claims

heard, akin to liberally granting pro se litigants leave

to amend. Cf. Fed. Express Corp. v. Holowecki, 552

U.S. 389, 402 (2008) (“pro se litigants are held to a

lesser pleading standard than other parties”); Estelle

v. Gamble, 429 U.S. 97, 106 (1976) (“The handwritten

pro se document is to be liberally construed.”).

Walker’s Rule 59(e) motion may have been permissible even under the Fifth Circuit’s rule because it

addressed only the timeliness of his petition. See Gonzalez v. Crosby, 545 U.S. 524, 532 n.4 (challenging a

previous ruling denying relief for reasons such as

“failure to exhaust, procedural default, or statute-oflimitations” would not be on the merits). However, petitioners—particularly proceeding pro se—who seek

clarification of decisions dismissing their petitions on

procedural or merits grounds would have everything

to lose by risking such a motion, and much less to gain

by proceeding under Rule 59 in the hope that they correctly state what the court of appeals would consider

a permissible, purely procedural question.

B. Rule 59 motions also allow district

courts to clarify their own orders even

where they continue to deny relief, thus

avoiding unnecessary remands.

Even when a Rule 59(e) motion does not result in

a different outcome, the motion serves a valuable pur-

13

pose in allowing district courts to clarify their reasoning in response to a petitioner’s claims of error, or to

respond more fully to the petitioner’s arguments. Several cases demonstrate that motions for reconsideration can sharpen issues for appeal and avoid the need

for appeals on issues that could have been easily resolved by the district court. The Fifth Circuit’s rule

would require petitioners to skip this clean-up step

and proceed straight to appeal in order to file a timely

appeal.

1.

Simpson v. Norris

Sedrice Simpson’s case illustrates the value of

Rule 59(e) motions in habeas proceedings, even if

those motions are unsuccessful. 490 F.3d 1029, 1035

(8th Cir. 2007).

Simpson was convicted of two counts of capital

murder and sentenced to death in May of 1998. After

exhausting his post-conviction remedies in Arkansas

state courts, Simpson brought a habeas petition in

district court in 2006. Simpson advanced eight claims,

including a claim that he was intellectually disabled

and so his capital sentence violated Atkins v. Virginia,

536 U.S. 304 (2002). The district court denied his petition and determined he was not entitled to an evidentiary hearing regarding his intellectual disability.

Simpson v. Norris, No. 5:04CV00429 JLH, 2006 WL

1520628 (E.D. Ark. May 30, 2006). Simpson moved for

reconsideration under Rule 59(e), arguing the court

erred in failing to properly address the retroactive application of Atkins v. Virginia, among other errors.

The district court denied the Rule 59(e) motion but

14

elaborated on its justification for dismissing Simpson’s Atkins claim without an evidentiary hearing.

Simpson v. Norris, No. 5:04CV00429 JLH (E.D. Ark.

June 22, 2006), Doc. 23.

Simpson appealed, focusing on errors in the district court’s basis for rejecting his Atkins claim. The

Eighth Circuit agreed with Simpson and vacated the

district court’s dismissal with instructions to allow

Simpson an opportunity to establish whether he met

the conditions for relief under Atkins. 490 F.3d at

1035-36. On remand, Simpson did so: the evidence

showed he had an IQ of 59, and the State of Arkansas

conceded it was unable to rebut the presumption that

Simpson was intellectually disabled and could not

face execution. After more than a decade on death

row, the district court granted habeas relief and converted Simpson’s sentence to two terms of life imprisonment without the possibility of parole. Simpson v.

Norris, No. 5:04CV00429 JLH, 2009 WL 2985837, at

*1 (E.D. Ark. Sept. 16, 2009).

Simpson’s motion was not a repetitive or abusive

effort to re-litigate claims. Rather, it was a reasonable

and well-founded effort, as in all civil cases, to encourage the court to revisit an erroneous decision depriving him of the opportunity to establish a

constitutional claim through an evidentiary hearing.

And, even though the district court denied reconsideration, the Rule 59 step in the process ensured that

the ultimately meritorious Atkins claim was fully teed

up for the court of appeals.

Simpson’s petition also further illuminates the severe consequences to habeas petitioners of the Fifth

15

Circuit’s approach. Simpson, like Mr. Banister, relied

on the plain language of Federal Rule of Appellate

Procedure 4 and did not file his notice of appeal within

30 days of the denial of his habeas petition. Had the

court of appeals considered his Rule 59 motion to be a

second and successive petition, Simpson would have

lost his right to appeal an erroneous decision—an appeal that was successful and saved him from an unconstitutional execution under Atkins.

2.

Vermillion v. Levenhagen

Jay Vermillion was a pro se prisoner who claimed

that he received constitutionally inadequate notice of

charges for prison infractions, for which the prison

punished him. 519 F. App’x 944 (7th Cir. 2013). Vermillion was charged in prison for trafficking tobacco

and a cell phone. The prison informed Vermillion of

the “incident date,” which was the date the prison

learned of the alleged trafficking but was not the date

the alleged trafficking occurred. Vermillion then constructed his response—and alibi defense—based on

the incident date, and was found guilty by a prison

tribunal. Id. at 946.

Vermillion sought habeas relief, but the district

court summarily dismissed the petition without ordering a response. Id. at 944. Vermillion then moved

for reconsideration pursuant to Rule 59(e). The court

denied the motion. Vermillion, No. 3:12-cv-00150-PS

(N.D. Ind. May 22, 2012), Doc. 6. In its order denying

reconsideration, however, the district court offered

further explanation for its dismissal: namely, that

Vermillion received adequate notice of the charge

16

against him because the prison identified the date it

learned of the alleged trafficking. Id.

Although the Rule 59(e) motion was unsuccessful,

the court’s explanation helped clarify for the pro se

petitioner the centrality of the notice issue: The Seventh Circuit observed that “[t]he principal contention

between the parties is whether the district court erred

in concluding that the conduct report provided constitutionally adequate notice of the trafficking charge.”

519 F. App’x 944, 945-46. Finding an insufficient record existed on the notice question, the court of appeals

reversed the dismissal of Vermillion’s petition and remanded for further development of the factual record.

Id. at 946-47. After remand, the Department of Corrections vacated Vermillion’s misconduct conviction

and dismissed the case against him. Vermillion, 3:12cv-00150-PPS (N.D. Ind. May 2, 2014), Doc. 37.

The Seventh Circuit’s determination illustrates

that Vermillion’s Rule 59 Motion was not an ill-considered or wasteful effort at a second bite at the apple.

Rather, it served an important clarifying purpose.

And had the district court granted reconsideration of

its sua sponte dismissal and instead allowed some development of the record, the parties and court might

have avoided the time and expense of an appeal altogether.

Vermillion, like Simpson, is instructive for a separate reason: the petitioner filed his notice of appeal

15 days after the court denied his Rule 59(e) motion

17

but 49 days after the district court summarily dismissed his habeas petition.2 Had the Seventh Circuit

applied the Fifth Circuit’s rule, Vermillion’s appeal

would have been dismissed as untimely. The decision

to seek reconsideration of the district court’s premature dismissal would have cost Vermillion the opportunity to appeal and prevented him from pursuing a

meritorious claim for habeas relief. The result would

have been to deprive the pro se petitioner of his one

full and fair opportunity to litigate his first habeas petition.

3.

Ferguson v. McKune

Lena Ferguson’s habeas petition presents another

example of the role of even unsuccessful Rule 59 motions in advancing both judicial economy and the interests of justice for petitioners. Ferguson was

charged with aggravated arson and felony murder of

her ex-husband. 55 F. Supp. 2d 1189, 1190 (D. Kan.

1999), rev’d, 229 F.3d 1163 (10th Cir. 2000). She was

represented by a public defender with whom she refused to cooperate, believing him to be untrustworthy

because he worked for the state. Her counsel moved

to withdraw on several occasions in light of the complete breakdown of the attorney-client relationship,

but the court refused. Her counsel, who argued he was

incapable of preparing a defense in light of Ferguson’s

2 The district court dismissed Vermillion’s petition for habeas corpus on April 18, 2012. Vermillion filed a motion for reconsideration pursuant to Rule 59(e) on May 16, 2012. The court

denied the motion on May 22, 2012. Vermillion filed his Notice

of Appeal on June 15, 2012. Brief of Appellant, Vermillion, No.

12-2436 (7th Cir. Nov. 1, 2012), Doc. 13.

18

suspicion and mistrust, represented her throughout

trial in state court. Ferguson was convicted and received a sentence of 15 years to life. Id. at 1190-92.

Ferguson sought habeas relief on the ground that

the state court denied her right to counsel and due

process of law in refusing her attorney’s motions to

withdraw. Ferguson’s initial petition for habeas corpus was denied without prejudice for failure to exhaust state remedies, however. Id. at 1192. Ferguson

had presented new affidavits and testimony at an evidentiary hearing regarding the breakdown in her relationship with counsel. The district court found that

the new evidence fundamentally altered the character

of her claims and thus needed to be presented to the

state courts, and so dismissed Ferguson’s petition

without prejudice. Id.

Ferguson moved for reconsideration under Rule

59, arguing the district court’s order was “so vague as

to virtually preclude appellate review.” Id. at 1193.

The district court granted the motion for the purpose

of clarifying its ruling, but the disposition remained

the same. The court’s revised ruling identified the

specific evidence upon which the court based its decision. Id. at 1193-94.

Ferguson appealed. 229 F.3d 1163 (10th Cir.

2000). The Tenth Circuit found that Ferguson had already exhausted state remedies and reversed and remanded for consideration of the habeas petition. To

reach its decision, the court compared the evidence

presented on direct appeal with the evidence presented in federal court and found no fundamental

19

change to the character of the claim presented to the

state courts. Id.

Such a comparison was only possible because the

district court’s final, reconsidered judgment clarified

the basis for its decision. Had a Rule 59 motion for

reconsideration been unavailable, Ferguson’s only options would have been to appeal the district court’s

original decision, which failed to adequately explain

the basis for the court’s ruling, or to accept the vague

ruling and pursue a superfluous attempt to exhaust

state remedies before again seeking habeas relief.

On remand, the district court granted Ferguson’s

petition and ordered that Ferguson be retried or released from custody. The Tenth Circuit affirmed. Ferguson v. Koerner, 131 F. Supp. 2d 1208, 1215 (D. Kan.

2001), aff’d, 37 F. App’x 376 (10th Cir. 2002).3

Ferguson’s Rule 59(e) motion may have been permissible under the Fifth Circuit’s rule because it addressed whether she exhausted state remedies. See

supra at 12; Gonzalez, 545 U.S. at 532 n.4. However,

as discussed above, she would have been taking a significant risk in staking her right to appeal on her ability to accurately predict whether the court of appeals

would view her motion as raising a purely procedural

question.

3 Ferguson’s petition for habeas corpus was filed before

AEDPA took effect, and her petition was reviewed according to

pre-AEDPA standards. Ferguson, 131 F. Supp. 2d at 1212.

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4.

Morrow v. Harkleroad

Jody Morrow’s Rule 59(e) motion presents another instructive example. The district court denied

Morrow’s habeas petition on several grounds, including the untimeliness of his petition. 258 F. Supp. 2d

418 (W.D.N.C. 2003). Morrow moved for reconsideration under Rule 59(e). The district court rejected all

but the timeliness ground. The state conceded that

Morrow’s petition was timely under prevailing circuit

law. Id. at 420.

Although the disposition remained the same—denial of Morrow’s habeas petition—the final district

court judgment was not based in part on the erroneous determination that the petition was untimely.

And when Morrow appealed the denial of habeas relief, the Fourth Circuit did not need to consider the

issue. See Morrow v. Harkleroad, 77 F. App’x 672 (4th

Cir. 2003) (denying certificate of appealability and

dismissing Morrow’s appeal).

C. Eliminating Rule 59 motions would

create additional burdens for the courts

of appeals.

As noted in several of the examples above, the

Fifth Circuit’s rule would disserve judicial economy

because it would leave habeas petitioners with no

choice but to wait for appeal to raise obvious errors or

omissions in district court orders, rather than present

them in Rule 59 motions so that district courts may

efficiently clean up straightforward issues in their

own orders. Indeed, if the Fifth Circuit’s rule were

21

adopted, “it would almost always be effectively impossible for a district court to correct flaws in its reasoning, even when the problems were immediately

pointed out and could be easily fixed by that court.

Court of appeals permission would be required, and

could only be granted in the extremely limited circumstances provided by 28 U.S.C. § 2255(h).” Howard,

533 F.3d at 475.

Yet “[t]he purpose of Rule 59(e) is to allow the district court to correct its own errors, sparing the parties and appellate courts the burden of unnecessary

appellate proceedings.” Id. (internal quotation marks

omitted). The effect of the Fifth Circuit’s rule would

be to shift additional work to the courts of appeals,

contrary to the design of the Federal Rules.

Already, the Fifth Circuit regularly considers appeals from vague, unclear, and erroneous district

court cases that could more efficiently have been

cleaned up by the district court itself, as the examples

below illustrate. The Fifth Circuit’s approach makes

trivial appeals like these even more necessary.

1.

Rivera v. Dretke

In Rivera v. Dretke, for example, the Fifth Circuit

reversed and remanded the dismissal of Timotheo Rivera’s habeas petition because the district court had

failed to include enough information for the court of

appeals to rule. 125 F. App’x 527, 528 (5th Cir. 2005).

Rivera claimed before the district court that he

filed a state habeas petition in January 2004. The dis-

22

trict court concluded that rendered his federal application untimely even with tolling for the period his

state habeas claim was pending. On appeal, Rivera

explained that he had in fact filed a state court petition for habeas relief in November 2003, thus tolling

AEDPA’s limitations period for longer and rendering

his federal habeas petition timely. The record on appeal did not clarify when Rivera filed the state habeas

petition, so the court of appeals could not determine

whether Rivera’s federal petition was time-barred.

Thus, the court vacated and remanded for further proceedings to resolve the timeliness question. This appeal and reversal could have been avoided too with a

straightforward Rule 59 motion before the district

court.

2.

Belasco v. Bidden

Similarly, in Belasco v. Bidden, the Fifth Circuit

remanded a denial of habeas relief with instructions

for the district court to develop the factual record. 89

F. App’x 896, 897 (5th Cir. 2004). Rene Belasco filed a

habeas petition under 28 U.S.C. § 2241 contending

that the Bureau of Prisons (BOP) calculated his goodtime credits in a manner contrary to statute, thus depriving him of earned good-time credits without due

process of law. The district court dismissed Belasco’s

petition sua sponte, reasoning that he had no constitutionally protected right to good-time credits.

Belasco did not move for reconsideration. The district court, however, had failed to consider Fifth Circuit precedent recognizing that, although prisoners

have no intrinsic right to good-time credits, a prisoner’s Fourteenth Amendment rights are implicated

23

when the government chooses to create a right to

good-time credits. Id. at 897. Because the dismissal

also failed to develop the factual record—in particular, regarding the time Belasco had served and the

good-time credit he had received, or regarding the

BOP’s methods of calculating good-time in general or

for Belasco in particular—the Fifth Circuit was unable to “conduct a meaningful appellate review.” Id.

The court of appeals therefore vacated the dismissal

and remanded with instructions to develop the factual

record. A Rule 59 motion pointing out the district

court’s clear errors and omissions could have eliminated the need for this year-long detour through the

court of appeals.

3.

Koumjian v. Quarterman

The Fifth Circuit considered a similar issue in

Koumjian v. Quarterman, 325 F. App’x 321, 321-22

(5th Cir. 2009). The district court concluded that Paul

Koumjian had not filed a state habeas application before the expiration of the limitations period, but Koumjian explained on appeal that he had done so and

thus his federal application was timely. The Fifth Circuit had no factual record to consider, and so it vacated and remanded for further proceedings. Id.

In short, decisions like these show that depriving

habeas petitioners of the opportunity to seek reconsideration of erroneous dismissals would have the

practical effect of increasing the burden on courts of

appeals, increasing the frequency with which they

must remand for further consideration of a habeas petition, and extending the overall duration of habeas

proceedings. Far from advancing AEDPA’s purpose,

24

this result would undermine the law’s goals of preventing undue delay in habeas proceedings. See, e.g.,

H.R. Rep. No. 104-518 (1996) (Conf. Rep.) (purpose of

AEDPA includes reforms to curb abuse of the writ and

prisoners’ ability to delay imposition of sentences).

D. Recharacterizing Rule 59 motions as

unauthorized second or successive

petitions

would

deprive

many

petitioners of the opportunity to appeal

in their first federal habeas proceedings.

Of course, the Fifth Circuit’s rule would not lead

to avoidable appeals and remands when petitioners,

like Mr. Banister, rely on the Rules’ plain text and

proceed with filing Rule 59 motions in district court.

In their cases, after their Rule 59 motions are dismissed as improper, they would discover that they are

jurisdictionally barred from appealing because Federal Rule of Appellate Procedure 4(a)(4)(A)(iv)’s tolling provision would not apply.

As noted, several of the petitioners discussed

above (Peterkin, Knish, Simpson, and Vermillion) had

meritorious claims that they would have lost entirely,

by virtue of filing a Rule 59 motion, had the Fifth Circuit’s rule applied. Mr. Banister’s own case demonstrates the unfairness of depriving petitioners of this

final step in their one full opportunity to seek federal

habeas relief. And one further example illustrates the

point.

Joel Darnell Patton was a repeat offender who

pleaded guilty to one count of possession of a firearm

25

by a convicted felon. His sentence was enhanced under the Armed Career Criminal Act (ACCA). United

States v. Patton, 750 F. App’x 259, 261 (5th Cir. 2018),

cert. denied, 139 S. Ct. 2743 (2019). Four years later,

this Court held that ACCA’s residual clause was unconstitutionally vague, see Johnson v. United States,

135 S. Ct. 2551, 2562-63 (2015), a rule that applied

retroactively to cases on collateral review, Welch v.

United States, 136 S. Ct. 1257, 1268 (2016).

In light of the new rule of constitutional law, the

Fifth Circuit tentatively granted Patton authorization to file a successive petition for habeas corpus under 28 U.S.C. § 2255 to show that he was sentenced

under the residual clause of the ACCA. Patton, 750 F.

App’x at 261. The district court denied the successive

petition, concluding that Patton failed to demonstrate

his sentence was enhanced under the unconstitutional residual clause of the ACCA,4 and alternatively, that Patton’s prior robbery convictions

qualified as violent felonies under ACCA’s force

clause. Id. at 263.

Patton then moved for reconsideration under

Rule 52(b) and Rule 59, arguing the court should

amend its findings and conclusions in light of an intervening Fifth Circuit decision. Id. at 261-62. The

court rejected the motion for reconsideration. Patton

then filed a notice of appeal of the district court’s denial of his successive petition. Id.

4 Whether this showing was necessary at all is the subject

of a circuit conflict, as described in the petition for certiorari in

Levert v. United States, No. 18-1276 (U.S. Apr. 5, 2019).

26

The court of appeals granted a certificate of appealability to consider (1) whether Patton’s motion for

reconsideration was an unauthorized, successive

§ 2255 application; (2) if so, whether such an unauthorized application could extend the filing deadline

for his appeal, and (3) if so, whether Patton’s prior

convictions for robbery qualified as violent felonies

under the ACCA’s (constitutionally permissible) force

clause. Id. at 262. Extending Gonzalez to Rule 59 motions, the Fifth Circuit recharacterized the Rule 59

motion as an unauthorized successive petition. Accordingly, Patton, like Mr. Banister, effectively forfeited his right to appeal when he filed a motion for

reconsideration, notwithstanding Federal Rule of Appellate Procedure 4’s suggestion that the time to appeal would be tolled. Id. at 265.

CONCLUSION

These examples from federal habeas cases illustrate how Rule 59(e) motions serve an important clarifying function in habeas petitioners’ one full and fair

opportunity to present their claims. They further

demonstrate that adopting the Fifth Circuit’s rule

would make habeas proceedings less efficient for the

federal courts and less fair to habeas petitioners. Accordingly, the Court should reverse the judgment below.

27

Respectfully submitted,

Barbara E. Bergman

Counsel of Record

Co-chair, Amicus Curiae

Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1201 Speedway Blvd.

Tucson, AZ 85721

(520) 621-3984

bbergman@email.arizona.edu

August 30, 2019