Opposition Brief — Joel Darnell Patton, Petitioner v. United States

Supreme Court briefMay 15, 2019

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No. 18-7449

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

JOEL DARNELL PATTON, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

CHRISTOPHER J. SMITH

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

QUESTIONS PRESENTED

Procedure

Whether petitioner’s motion under Federal Rule of Civil

59(e)

alter

amend

the

judgment

denying

his

collateral attack on his sentence, which asserted a claim seeking

relief on the merits, was properly classified as an unauthorized

“second or successive” collateral attack under

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

Whether an unauthorized “second or successive motion”

under 28 U.S.C. 2255(h), when labeled by counsel as a motion to

amend the judgment under Federal Rule of Civil Procedure 59(e),

tolls the time for filing a notice of appeal under Federal Rule of

Appellate Procedure 4(a)(4)(A).

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-7449

JOEL DARNELL PATTON, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-9a) is not

published in the Federal Reporter but is reprinted at 750 Fed.

Appx. 259.

The order of the district court (Pet. App. 28a-30a) is

unreported.

A prior opinion of the court of appeals is not

published in the Federal Reporter but is reprinted at 263 F.3d

166.

JURISDICTION

The judgment of the court of appeals was entered on September

10, 2018.

A petition for rehearing was denied on October 12, 2018

(Pet. App. 10a).

The petition for a writ of certiorari was filed

on January 10, 2019.

The jurisdiction of this Court is invoked

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

STATEMENT

Following a guilty plea in the United States District Court

for the Northern District of Texas, petitioner was convicted of

possession of a firearm by a felon, in violation of 18 U.S.C.

922(g)(1) and 924(e)(1).

Sent. Tr. 5-7.

He was sentenced to 210

months of imprisonment, to be followed by three years of supervised

release.

Id. at 7.

The court of appeals affirmed, 263 F.3d 166,

and this Court denied a petition for a writ of certiorari, 534

U.S. 1007 (No. 01-6384).

Petitioner subsequently filed a motion to vacate, correct, or

set aside his sentence under 28 U.S.C. 2255, which the district

court denied.

See Pet. App. 28a.

The court of appeals later

granted petitioner authorization to file a successive Section 2255

motion.

See id. at 2a.

successive

motion

and

The district court denied petitioner’s

his

request

for

certificate

appealability (COA), see id. at 3a, and denied relief on a filing

labeled as a motion to reopen the judgment and for reconsideration

under Federal Rules of Civil Procedure 52 and 59, see Pet. App.

28a-30a.

The court of appeals granted a COA and then dismissed

petitioner’s appeal for lack of jurisdiction.

Id. at 1a-9a.

On November 8, 1999, petitioner was involved in a dispute

with his girlfriend.

Presentence Investigation Report (PSR) ¶ 4.

Petitioner became angry, threw his girlfriend, and started choking

her.

Ibid.

Petitioner then retrieved a .22 caliber revolver, and

he and his girlfriend began to fight over the weapon.

PSR ¶ 5.

Petitioner’s girlfriend ultimately gained control of the weapon,

fled, and called the police.

Ibid.

Petitioner, who was a

convicted felon, admitted to police that the gun was in his

possession during the incident.

PSR ¶ 6.

A grand jury indicted petitioner on one count of being a

convicted felon in possession of a firearm, in violation of 18

U.S.C. 922(g)(1) and 924(e)(1).

Indictment 1.

A conviction for

violating Section 922(g)(1) has a default statutory sentencing

range of zero to ten years of imprisonment.

See 18 U.S.C.

924(a)(2).

three

If,

however,

the

defendant

has

convictions for “violent felon[ies]” or “serious drug offense[s]”

that were “committed on occasions different from one another,”

then the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C.

924(e),

specifies

imprisonment.

sentencing

range

See 18 U.S.C. 924(e)(1).

years

life

The ACCA defines a

“violent felony” as:

any crime punishable by imprisonment for a term exceeding one

year * * * that –

(i) has as an element the use, attempted use, or threatened

use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another.

18 U.S.C. 924(e)(2)(B).

The first clause of that definition is

commonly referred to as the “elements clause” or “force clause,”

and

the

portion

“residual clause.”

1261 (2016).

beginning

with

“otherwise”

known

the

See Welch v. United States, 136 S. Ct. 1257,

Petitioner entered into a plea agreement with the

government and pleaded guilty to the indicted offense.

Sent. Tr.

2-3.

The Probation Office classified petitioner as an armed career

criminal under the ACCA based on four prior Texas state convictions

for robbery, as well as a conviction for aggravated assault.

¶¶ 24-29.

PSR

The district court adopted the Probation Office’s

calculations, see Sent. Tr. 5, and sentenced petitioner to 210

months of imprisonment, id. at 7.

The court of appeals affirmed, 263 F.3d 166, and this Court

denied a petition for a writ of certiorari, 534 U.S. 1007 (No. 016384).

Almost eight years later, petitioner filed a motion to

vacate, correct, or set aside his sentence under 28 U.S.C. 2255,

arguing that his sentence should be recalculated and reduced under

Amendment 709 of the U.S. Sentencing Guidelines.

9/22/09 Order 2.

The district court denied petitioner’s motion as untimely, id. at

1, 6, and petitioner’s appeal was ultimately dismissed for want of

prosecution, Order, No. 09-11104 (May 10, 2010).

On two subsequent occasions, petitioner sought authorization

from the court of appeals to file second or successive Section

2255 motions, but both requests were denied.

See 3/17/15 COA

Denial 1-2; 3/17/16 COA Denial 1-2.

(Samuel

In Johnson v. United States, 135 S. Ct. 2551 (2015)

Johnson),

this

Court

invalidated

the

ACCA’s

residual

clause as impermissibly vague, in violation of the Due Process

Clause.

See id. at 2563.

In Welch, supra, the Court

determined

that the ruling in Samuel Johnson was a “substantive decision that

is retroactive in cases on collateral review.”

136 S. Ct. at 1261;

see id.

court

1265.

August

2016,

the

appeals

tentatively granted petitioner’s application to file a successive

28 U.S.C. 2255 motion based on this Court’s decisions in Samuel

Johnson and Welch.

Pet. App. 11a-12a.

The court of appeals

ordered its clerk to transfer the application for authorization

and its pleadings to the district court and instructed that “the

district court must dismiss the § 2255 motion without reaching

the merits if it determines that [petitioner] has failed to make

the showing required to file such a motion.”

Id. at 12a (citing

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

On February 9, 2017, the district court denied and dismissed

petitioner’s

Section

2255

motion.

rejected

petitioner’s

argument that his sentence had been unconstitutionally enhanced,

by reliance on the residual clause of the ACCA, to classify his

Texas robbery convictions as “violent felonies.”

Pet. App. 13a-

14a.

had

The

court

determined

that

petitioner

failed

demonstrate that the sentencing court had “regarded his robberies

as violent felonies under the residual clause of the ACCA.”

14a.

The

court

also

found

that

petitioner’s

Id.

“robbery

convictions continue to qualify as violent felonies under the force

clause of the ACCA,” and that he therefore “continues to have at

least three qualifying convictions.”

a COA.

Ibid.

The court also denied

Ibid.

On February 22, 2017, petitioner, with the assistance of

counsel, made a filing in which he requested that the district

court

“amend

its

findings,

re-open

the

judgment,

amend

its

conclusions of law or make new ones, and alter or amend the

judgment” pursuant to Federal Rules of Civil Procedure 52(b) and

59(a) and (e).

Pet. App. 19a.

In his motion, petitioner argued

that an intervening court of appeals case, United States v. RicoMejia, 853 F.3d 731 (5th Cir.), withdrawn and superseded on panel

reh’g, 859 F.3d 318 (2017), provided grounds for reconsideration

of the district court’s application of the elements clause to his

Texas robbery convictions.

Pet. App. 19a-27a.

The district court denied relief.

Pet. App. 28a-30a.

The

court explained that the court of appeals had authorized “a narrow

opportunity for [petitioner] to make a challenge to his ACCA

sentence” under the holding of Samuel Johnson, 135 S. Ct. 2551,

rather than “a broad opportunity to challenge other provisions of

the ACCA or [rely on] any holding not made retroactive.”

App. 29a.

The district court also denied a COA.

Id. at 30a.

On August 23, 2017, petitioner filed a notice of appeal.

Pet. App. 3a.

three

Pet.

The court of appeals granted petitioner a COA on

issues:

(1)

whether

petitioner’s

post-judgment

filing

invoking Rules 52 and 59 was an unauthorized, successive Section

2255 motion; (2) whether an unauthorized, successive Section 2255

motion extends the period for filing a timely notice of appeal;

and (3) whether petitioner’s convictions for Texas robbery qualify

as violent felonies under the ACCA’s elements clause.

court

ultimately

dismissed

petitioner’s

jurisdiction in an unpublished opinion.

appeal

Ibid.

for

lack

The

Id. at 1a-9a.

The court of appeals first determined that petitioner’s postjudgment

filing

was

properly

construed

successive Section 2255 petition.

unauthorized,

Pet. App. 4a-8a.

The court

observed that in Gonzalez v. Crosby, 545 U.S. 524, 530-532 (2005),

this Court held that, in the context of a collateral attack under

28 U.S.C. 2254 by a state prisoner, a post-judgment motion under

Federal Rule of Civil Procedure 60(b) should be construed as a

successive habeas petition if it “raises new claims for relief,

presents new evidence in support of a claim that has already been

litigated, contends that a subsequent change in decisional law

justifies relief from the judgment, or otherwise challenges the

district court’s resolution of the underlying claim on the merits.”

Pet. App. 4a (footnote omitted).

motion

“‘attacks[]

not

the

By contrast, if a post-judgment

substance

the

federal

court’s

resolution of a claim on the merits, but some defect in the

integrity of the federal habeas proceedings,’ courts should not

construe the motion as a successive petition.”

Gonzalez, 545 U.S. at 532).

Id. at 5a (quoting

The court of appeals further observed

that “[c]ourts have extended the logic of Gonzalez beyond its

specific procedural posture,” applying it to Section 2255 motions,

as well as to motions under Federal Rule of Civil Procedure 59(e).

Pet. App. 5a.

And while the court recognized that “differences

exist between Rule 59(e) and Rule 60(b), it emphasized that both

Rules ‘permit the same relief -- a change in judgment.’”

Ibid.

(quoting Williams v. Thaler, 602 F.3d 291, 303 (5th Cir.), cert.

denied, 562 U.S. 1006 (2010)).

The court of appeals accordingly determined that “the answer

to the successive petition inquiry turns on the actual substance

[petitioner’s]

post-judgment

technical title.”

Pet. App. 6a.

motion

not

the

motion’s

The court explained that if

petitioner’s “motion attacks the merits of the district court’s

ruling on his § 2255 petition, it is an unauthorized, successive

habeas petition, regardless of the fact that it was self-styled as

a Rules 52(b) and 59(a), (e) motion.”

appeals

found

that,

because

Ibid.

petitioner’s

And the court of

post-judgment

filing

attacked the district court’s merits determination, “it is an

unauthorized, successive § 2255 petition under Gonzalez and its

progeny.”

Id. at 7a-8a.

The court of appeals observed that the

district court had made a finding that petitioner’s “robbery

convictions continued to qualify as violent felonies under the

force clause of ACCA”; that the finding was “a resolution of the

force

clause

argument

[petitioner]

raised

his

motion

for

authorization and implicated in his § 2255 petition on the merits”;

and that the post-judgment filing’s focus on that “merits-based

ruling” belied petitioner’s argument that his post-judgment motion

was “merely challenging the district court’s refusal to reach the

merits of his underlying claim.”

Id. at 6a-7a.

The court of appeals then reasoned that, as a consequence of

petitioner’s post-judgment filing being an unauthorized successive

Section 2255 motion, petitioner’s notice of appeal was untimely,

and the court dismissed the appeal for lack of jurisdiction.

App. 8a-9a.

Pet.

The court observed that a petitioner generally has 60

days from the denial of his Section 2255 motion to file a notice

of appeal, id. at 8a (citing 28 U.S.C. 2107(b); Fed. R. App. P.

4(a)(1)(B)), a limit that is “prescribed by statute” and thus

“jurisdictional,” ibid. (citing Bowles v. Russell, 551 U.S. 205,

210-213 (2007)).

The court explained that, while “[p]ost-judgment

motions will ordinarily toll the filing period, and the deadline

for filing a notice of appeal will be 60 days from the entry of an

order disposing of the motions,” when “a post-judgment motion is

in fact an unauthorized, successive § 2255 petition, the filing

period is not tolled.”

Id. at 8a-9a (citing Uranga v. Davis, 893

F.3d 282, 284 (5th Cir. 2018), cert. denied, 139 S. Ct. 1179

(2019)).

The court of appeals rejected petitioner’s argument that this

Court’s decision in Castro v. United States, 540 U.S. 375 (2003),

prevented the court of appeals from construing his post-judgment

filing as an unauthorized successive Section 2255 motion.

App. 9a n.6.

Pet.

The court explained that Castro “dealt with the

recharacterization of a post-judgment motion to the detriment of

a pro se litigant,” and that “[t]he equitable considerations

underlying

the

Supreme

Court’s

reasoning

Castro

are

inapplicable where the petitioner is represented by competent

legal counsel,” as petitioner was in this case.

Ibid.

ARGUMENT

Petitioner contends (Pet. 6-10) that this Court should grant

certiorari to determine whether 28 U.S.C. 2255(h)’s gatekeeping

provisions for “second or successive” collateral attacks apply to

a motion for reconsideration under Federal Rule of Civil Procedure

59(e).

Although the circuits are in some disagreement on aspects

of that question, this case presents an unsuitable vehicle to

resolve such disagreement.

Petitioner would not be entitled to

relief even if the court resolved the issue in his favor, and his

collateral attack on his sentence is moot because he has now been

released from prison.

Petitioner also contends (Pet. 10-19) that

this Court should determine whether an unauthorized “second or

successive” motion, styled by counsel as a motion to amend the

judgment under Federal Rule of Civil Procedure 59(e), tolls the

time for filing a notice of appeal under Federal Rule of Appellate

Procedure 4(a)(4)(A).

Petitioner does not allege any conflict

among the circuits on that issue; none exists; and the case would

be unsuitable for addressing the second question presented for the

same reasons that it is unsuitable for addressing the first.

further review is warranted.

Petitioner contends (Pet. 4-10) that the court of appeals

incorrectly treated a Rule 59(e) motion to alter or amend the

judgment as a “second or successive” Section 2255 motion under 28

U.S.C. 2255(h) and that this Court’s review is necessary to resolve

a conflict among the circuits on whether Rule 59(e) motions can

ever be classified as “second or successive” collateral attacks.

This case does not present a suitable vehicle to address that

question, because petitioner is ineligible for relief regardless

of how his Rule 59(e) motion is classified.

a. Under 28 U.S.C. 2255(h), any “second or successive motion”

for relief under Section 2255 must first be certified by a panel

of the court of appeals.

For the motion to proceed, the court of

appeals must certify that the motion involves a new rule of

constitutional law made retroactive on collateral review by this

Court or newly discovered evidence that sufficiently undermines a

guilty verdict.

Ibid.

Gonzalez

Crosby,

545

U.S.

524

(2005),

this

Court

addressed a related restriction under 28 U.S.C. 2244(b) on “second

or successive” habeas petitions seeking to vacate state-court

criminal judgments.

Section 2244).

See 28 U.S.C. 2255(h) (cross-referencing

The Court held that a motion for relief from final

judgment under Federal Rule of Civil Procedure 60(b) will be

considered a “second or successive” habeas petition under Section

2244(b) if it contains one or more “claims” -- i.e., “an asserted

federal

basis

for

relief

from

state

conviction.”

Gonzalez, 545 U.S. at 530-531.

that

60(b)

Rule

motion

will

court’s

treated

judgment

The Court thus held

“second

successive” habeas petition if it asserts “a new ground for relief”

or “attacks the federal court’s previous resolution of a claim on

the merits.”

Id. at 532 & n.4 (emphasis omitted).

In contrast,

the Court held, if a Rule 60(b) motion “attacks, not the substance

of the federal court’s resolution of a claim on the merits, but

some defect in the integrity of the federal habeas proceedings,”

such as fraud on the court or a misapplication of the statute of

limitations of the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), it will not be deemed a “second or successive”

habeas petition.

Id. at 532; see id. at 532 n.5, 533.

Although Gonzalez arose in the context of a Section 2254

habeas petition challenging a state-court judgment, courts of

appeals have uniformly applied the holding of Gonzalez to Section

2255 motions attacking federal judgments, in light of the similar

restriction on “second or successive” motions contained in Section

2255(h).

See Gilbert v. United States, 640 F.3d 1293, 1323 (11th

Cir. 2011) (en banc) (collecting cases), cert. denied, 565 U.S.

1116 (2012).

Petitioner does not challenge in his certiorari

petition the application of Gonzalez to Section 2255(h).

Rather,

petitioner contends (Pet. 8-9) that Section 2255(h)’s restrictions

on “second or successive” motions do not apply to filings that

invoke Rule 59(e), as opposed to Rule 60(b), even if they contain

“claims” within the meaning of Gonzalez.

In petitioner’s view,

because a Rule 59(e) motion suspends the finality of a judgment,

so long as a filing challenging the district court’s resolution of

an initial Section 2255 motion is labeled a Rule 59(e) motion and

complies with the rule’s requirement that it be filed within 28

days of the judgment, Section 2255(h)’s restrictions on “second or

successive” motions for collateral relief have no application.

That argument is unsound.

As the court below has previously

explained, “[k]eeping in mind AEDPA’s basic premises -- avoiding

piecemeal litigation and encouraging petitioners to bring all

their substantive claims in a single filing -- * * * Rule 59(e)

gives rise to concerns similar to those the Supreme Court addressed

in Gonzalez” in the context of Rule 60(b).

Williams v. Thaler,

602 F.3d 291, 303 (5th Cir.), cert. denied, 562 U.S. 1006 (2010).

Although the two rules do not function identically, “[i]n practice

* * * Rules 59(e) and 60(b) permit the same relief -- a change in

judgment”

and

habeas

petitioner

should

not

“have

the

opportunity to circumvent AEDPA’s jurisdictional bar on second or

successive applications based on little more than the petitioner’s

ability to file his or her motion within” the time period provided

by the rule. Id. at 303-304 (citation and internal quotation marks

omitted); see Howard v. United States, 533 F.3d 472, 476-477 (6th

Cir. 2008) (Boggs, J., dissenting) (“I do not see how many filings

labeled as 59(e) motions can escape being ruled out by the basic

premise of AEDPA:

that all habeas claims should generally be

brought at one time and that piecemeal habeas litigation should be

discouraged to the greatest extent possible, permitted only by

Court of Appeals permission.”).

Accordingly,

putative

Rule

59(e)

motion

that,

petitioner’s here, asserts a “claim” within the meaning of Gonzalez

should be treated as a “second or successive motion” within the

meaning of Section 2255(h).

Petitioner does not meaningfully

dispute that his pleading, though styled as a Rule 59(e) motion,

raised a “claim” as defined by Gonzalez.

See Pet. 15 (asserting

only that the issue “is at least debatable”).

appeals

found,

petitioner’s

motion

asserted

As the court of

new

ground

challenge the district court’s ruling on its merits, see Pet. App.

6a, and a post-judgment motion that “attacks the federal court’s

previous resolution of a claim on the merits” is a “second or

successive” Section 2255 motion, Gonzalez, 545 U.S. at 532 & n.4

(emphasis

omitted).

Therefore,

petitioner’s

filing

required

authorization from a panel of the court of appeals under Section

2255(h), which petitioner failed to obtain.

Courts of appeals have disagreed about the applicability of

Gonzalez to Rule 59(e) motions. The Fifth Circuit has, in Williams

v. Thaler, supra, and in the unpublished decision below, applied

Gonzalez to filings invoking Rule 59(e).

The Eighth and Tenth

Circuits have done so in the context of “Rule 59(e) motions to

reconsider the dismissal of Rule 60(b) motions that the district

court had determined to be second or successive petitions requiring

court of appeals permission.”

Blystone v. Horn, 664 F.3d 397, 415

n.12 (3d Cir. 2011); see Ward v. Norris, 577 F.3d 925 (8th Cir.

2009),

cert.

denied,

559

U.S.

1051

(2010);

United

States

Pedraza, 466 F.3d 932 (10th Cir. 2006).

The Third and Sixth Circuits have declined to apply the

gatekeeping provisions of 28 U.S.C. 2244(b) and 2255(h) to Rule

59(e) motions.

See Blystone, 664 F.3d at 413-415 (3d Cir.);

Howard, 533 F.3d at 476 (6th Cir.).

In Curry v. United States,

307 F.3d 664 (2002), cert. denied, 538 U.S. 989 (2003), the Seventh

Circuit expressed agreement with that position, but its discussion

was “not strictly necessary to the holding,” Howard, 533 F.3d at

474, and therefore was dictum.

And the Ninth Circuit has adopted

a hybrid approach under which “a Rule 59(e) motion that raises

entirely new claims should be construed as a second or successive

habeas petition subject to AEDPA’s restrictions,” but “a timely

Rule 59(e) motion that asks the district court to ‘correct manifest

errors of law or fact upon which the judgment rests’ should not be

construed as a second or successive habeas petition.”

Rishor v.

Ferguson, 822 F.3d 482, 492 (2016) (citation and emphasis omitted),

cert. denied, 137 S. Ct. 2213 (2017).

This case would be an unsuitable vehicle to address the

question presented because petitioner would not be entitled to

relief

even

Section

2255(h)’s

restriction

“second

successive” motions did not apply to his filing, both because his

claim

lacks

merit

and

because

his

term

imprisonment

has

concluded.

First, the district court denied petitioner’s post-judgment

filing on the merits, Pet. App. 29a, and its determination that

petitioner’s Texas robbery convictions “continue to qualify as

violent felonies under the force clause of the ACCA” even after

Samuel Johnson, Pet. App. 14a, is clearly correct.

As this Court

recently reiterated in Stokeling v. United States, 139 S. Ct. 544

(2019), an offender uses “physical force” for purposes of the ACCA,

18 U.S.C. 924(e)(2)(B)(i), when he uses or threatens the use of

“violent force -- that is, force capable of causing physical pain

or injury to another person.”

Stokeling, 139 S. Ct. at 553

(quoting Johnson v. United States, 559 U.S. 133, 140 (2010))

(emphasis

omitted).

Because

conviction

for

Texas

robbery

requires either the causation of bodily injury or the threat of

bodily injury, see Tex. Penal Code Ann. § 29.02(a), it necessarily

requires “force capable of causing physical pain or injury.”

Accordingly, relying on Stokeling and United States v. Castleman,

572 U.S. 157, 164-165 (2014), the court of appeals has recognized

(along with the only other circuit to address the issue) that Texas

robbery qualifies as a violent felony under the ACCA’s elements

clause.

United States v. Burris, 920 F.3d 942, 945 (5th Cir.

2019); see United States v. Hall, 877 F.3d 800, 808 (8th Cir. 2017)

(holding that Texas robbery is a violent felony under the elements

clause), cert. denied, 139 S. Ct. 1254 (2019).

Petitioner’s

collateral attack on his ACCA sentence was therefore unavailing

irrespective of the resolution of the procedural arguments he makes

in this Court.

Second,

petitioner’s

challenge to it is moot.

ACCA

sentence

now

over,

his

According to the Federal Bureau of

Prisons, petitioner was released on September 18, 2018.

See Fed.

Bureau of Prisons, Find an Inmate, https://www.bop.gov/inmateloc

(February

19,

2019)

(search

for

number

34351-077).

Because petitioner’s challenge affects only the length of his

sentence rather than his underlying conviction, the case became

moot on that date.

See Lane v. Williams, 455 U.S. 624, 631 (1982)

(“Since respondents elected only to attack their sentences, and

since

those

sentences

expired

during

the

course

these

proceedings, this case is moot.”).

The completion of a criminal defendant’s sentence will not

normally

moot

appeal

criminal

convictions

challenging

generally

have

the

conviction

“continuing

because

collateral

consequences” beyond just the sentences imposed. Spencer v. Kemna,

523

U.S.

(1998).

But

“presumption

collateral

consequences” does not extend beyond criminal convictions.

12.

Id. at

Therefore, when a defendant challenges only the length of his

term of imprisonment, his completion of that prison term moots an

appeal, unless the defendant can show that the challenged action

continues

cause

“collateral

consequences

adequate

meet

Article III’s injury-in-fact requirement,” id. at 14, and that

those consequences are “‘likely to be redressed by a favorable

judicial decision,’” id. at 7 (citation omitted).

Petitioner cannot make that showing here.

The only portion

of petitioner’s sentence to which he is still subject is his threeyear term of supervised release.

And in United States v. Johnson,

529 U.S. 53, 54 (2000), this Court held that a prisoner who serves

too long a term of incarceration is not entitled to receive credit

against his term of supervised release.

The Court in Johnson

recognized that a prisoner who has been incarcerated beyond his

proper

term

imprisonment

might

able

persuade

the

sentencing court to exercise its discretion to shorten the duration

of the prisoner’s term of supervised release under 18 U.S.C.

3583(e)(1), which permits a court to do so “if it is satisfied

that such action is warranted by the conduct of the defendant

released and the interest of justice.”

See 529 U.S. at 60.

But,

as the Third Circuit has explained, “[t]he possibility that the

sentencing court will use its discretion to modify the length of

[a defendant’s] term of supervised release * * * is so speculative”

that it does not suffice to present a live case or controversy.

Burkey v. Marberry, 556 F.3d 142, 149, cert. denied, 558 U.S. 969

(2009). *

In addition, petitioner’s three-year supervised-release

term will likely have run its course by the time of any merits

decision in this case, if certiorari were granted.

Petitioner further argues (Pet. 10-19) that this Court

should grant certiorari to determine whether a pleading that is in

Other courts of appeals have concluded that the

possibility that the sentencing court would exercise its

discretion to reduce a defendant’s supervised-release term is

sufficient to prevent his sentencing challenge from becoming moot

upon completion of his prison term. See Tablada v. Thomas, 533

F.3d 800, 802 n.1 (9th Cir. 2008), cert. denied, 560 U.S. 964

(2010); Levine v. Apker, 455 F.3d 71, 77 (2d Cir. 2006). Those

decisions, however, failed to address this Court’s decision in

Johnson.

Regardless, the need for this Court to resolve the

mootness question at a minimum makes this case a poor vehicle for

considering the underlying question.

substance an unauthorized “second or successive” Section 2255

motion, but is styled by counsel as a motion for reconsideration

filed pursuant to Federal Rule of Civil Procedure 59(e), tolls the

time for filing a notice of appeal from the underlying judgment

pursuant to Federal Rule of Appellate Procedure 4(a)(4)(A).

For

the reasons just discussed, this case would be an unsuitable

vehicle for review of that issue as well.

appeals

correctly

determined

that

In any event, the court

pleading

that

substance a “second or successive” Section 2255 motion does not

toll the time for filing a notice of appeal.

The unpublished

decision in this case does not conflict with any decision of this

Court

another

court

appeals,

and

further

review

unwarranted.

As the court of appeals has previously explained, although

Appellate Rule 4 provides that a timely motion under Rule 59(e)

suspends the time for filing a notice of appeal, “a purported Rule

59(e) motion that is, in fact, a second or successive [habeas

petition] is subject to the restrictions of [AEDPA] and [does] not

toll the time for filing a notice of appeal.”

Uranga v. Davis,

893 F.3d 282, 284 (5th Cir. 2018), cert. denied, 139 S. Ct. 1179

(2019); see Williams, 602 F.3d at 303 (“We have held that a

properly filed Rule 59(e) motion voids a previously-filed notice

appeal

under

Federal

Rule

Appellate

Procedure

4(a)(4)(A)(iv).”). That interpretation of Appellate Rule 4(a)(4)(A)

is sound.

The rule lists the specific types of motions that will

suspend the finality of the judgment for purposes of filing a

notice of appeal, and “[t]he title of [a] pleading does not control

[the]

determination”

whether

falls

within

one

those

categories, Havensight Capital LLC v. Nike, Inc., 891 F.3d 1167,

1172 (9th Cir. 2018).

Rather, courts “‘look to the substance’ of

the pleading ‘to determine whether it is in substance a motion to

alter or amend the judgment.’”

Ibid. (quoting United States ex

rel. Hoggett v. University of Phoenix, 863 F.3d 1105, 1108 (9th

Cir. 2017)).

substance

Therefore, if a post-judgment filing is not in

Rule

59(e)

motion,

but

instead

“second

successive” collateral attack, it does not toll the time to file

the notice of appeal.

Petitioner

errs

suggesting

(Pet.

16-17)

that

the

unpublished decision below conflicts with this Court’s decision in

Castro v. United States, 540 U.S. 375, 377 (2003).

In Castro,

this Court explained that a court may treat “as a request for

habeas relief under 28 U.S.C. § 2255 a motion that a pro se federal

prisoner has labeled differently.”

omitted).

540 U.S. at 377 (emphasis

But because “[s]uch recharacterization can have serious

consequences for the prisoner” -- by subjecting “any subsequent

motion under § 2255 to the restrictive conditions that federal law

imposes upon a ‘second or successive’ (but not upon a first)

federal habeas motion” -- a court cannot “recharacterize a pro se

litigant’s motion as the litigant’s first § 2255 motion unless the

court informs the litigant of its intent to recharacterize, warns

the

litigant

that

the

recharacterization

will

subject

subsequent § 2255 motions to the law’s ‘second or successive’

restrictions, and provides the litigant with an opportunity to

withdraw, or to amend, the filing.”

omitted).

Ibid. (citation and emphasis

“Recharacterizing a prisoner’s successive collateral

motions in the sentencing court as within the scope of § 2255,”

however, “does not pose any similar risk,” because the “initial

round of collateral review has been enjoyed

* * *

, and the only

question is whether the court will permit the prisoner to use

nomenclature to defeat the rules established by Congress.”

Melton

v. United States, 359 F.3d 855, 857 (7th Cir. 2004).

Nor do

counseled filings like petitioner’s present the same equitable

concerns as pro se filings.

See Pet. App. 9a n.6.

Petitioner identifies no conflict in the circuits on the

second question presented.

And he fails to identify how it would

have any practical significance independent of the first question

presented.

If a post-judgment filing is in fact an unauthorized

successive collateral attack, it cannot provide a basis for relief,

irrespective of whether an appeal of its denial is timely.

U.S.C. 2255(h).

warranted.

See 28

For that reason as well, no further review is

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

CHRISTOPHER J. SMITH

Attorney

MAY 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.