Opposition Brief — Ramon Hueso, Petitioner v. J. A. Barnhart, Warden

No. 19-1365

In the Supreme Court of the United States

RAMON HUESO, PETITIONER

v.

J. A. BARNHART, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

BRIAN C. RABBITT

Acting Assistant Attorney

General

JENNY C. ELLICKSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Under 28 U.S.C. 2255, a federal prisoner has the opportunity to collaterally attack his sentence once on any

ground cognizable on collateral review, with “second or

successive” attacks limited to certain claims that indicate factual innocence or that rely on constitutional-law

decisions made retroactive by this Court. 28 U.S.C.

2255(h). Under 28 U.S.C. 2255(e), an “application for a

writ of habeas corpus [under 28 U.S.C. 2241] in behalf

of a prisoner who is authorized to apply for relief by motion pursuant to” Section 2255 “shall not be entertained

* * * unless it * * * appears that the remedy by motion

is inadequate or ineffective to test the legality of his detention.”

The question presented is whether petitioner, a federal prisoner who previously filed an unsuccessful collateral attack under Section 2255, is entitled to a further

collateral attack under Section 2241 based on his claim

that a recent change in how the circuit of conviction determines the statutory minimum sentence for recidivist

drug offenders requires that he be resentenced.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States Court of Appeals (9th Cir.):

Hueso v. United States, No. 20-70413 (Mar. 10, 2020)

United States v. Hueso, No. 11-35855 (May 15, 2012)

United States v. Hueso, No. 12-35102 (Mar. 15, 2012)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument..................................................................................... 10

Conclusion ................................................................................... 24

TABLE OF AUTHORITIES

Cases:

Alaimalo v. United States, 645 F.3d 1042

(9th Cir. 2011) ...................................................................... 17

Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020) ........................ 18

Bousley v. United States, 523 U.S. 614 (1998) .................... 12

Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013) ............... 18

Brown v. Rios, 696 F.3d 638 (7th Cir. 2012). ................ 18, 19

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) ....... 5, 12

Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019) ................. 22

Davenport, In re, 147 F.3d 605 (7th Cir. 1998) ................... 23

Davis v. United States, 417 U.S. 333 (1974) ....................... 14

Dodd v. United States, 545 U.S. 353 (2005) .................. 14, 17

Dyab v. English, 140 S. Ct. 847 (2020) ................................ 19

Hahn v. Moseley, 931 F.3d 295 (4th Cir. 2019) ............ 22, 23

Higgs v. Wilson, 140 S. Ct. 934 (2020) ................................. 18

Hill v. Masters, 836 F.3d 591 (6th Cir. 2016)...... 5, 18, 19, 22

Hill v. United States, 368 U.S. 424 (1962)........................... 16

Hueso v. Sepanek, No. 13-cv-19, 2013 WL 4017117

(E.D. Ky. Aug. 6, 2013)......................................................... 5

Jones v. Underwood, 140 S. Ct. 859 (2020) ......................... 19

(III)

IV

Cases—Continued:

Page

McCarthan v. Director of Goodwill IndustriesSuncoast, Inc., 851 F.3d 1076 (11th Cir. ),

cert. denied, 138 S. Ct. 502 (2017) ........ 11, 12, 13, 15, 16, 17

Moncrieffe v. Holder, 569 U.S. 184 (2013) ............................ 7

Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011),

cert. denied, 565 U.S. 1111 (2012) ................... 12, 14, 15, 17

Quary v. English, 140 S. Ct. 898 (2020) .............................. 19

Reyes-Requena v. United States, 243 F.3d 893

(5th Cir. 2001) ...................................................................... 19

Russello v. United States, 464 U.S. 16 (1983) ..................... 14

Triestman v. United States, 124 F.3d 361

(2d Cir. 1997) .......................................................................... 17

Tyler v. Cain, 533 U.S. 656 (2001) ....................................... 11

United States v. Booker, 543 U.S. 220 (2005) ....................... 5

United States v. Fausto, 484 U.S. 439 (1988) ..................... 15

United States v. Geozos, 870 F.3d 890 (9th Cir. 2017),

abrogated by Stokeling v. United States, 139 S. Ct.

544 (2019) ............................................................................. 22

United States v. Hayman, 342 U.S. 205 (1952) .................. 16

United States v. Montgomery, 893 F.3d 935

(6th Cir. 2018) ...................................................................... 22

United States v. Murillo, 422 F.3d 1152

(9th Cir. 2005) ................................................................ 19, 20

United States v. Peterman, 249 F.3d 458

(6th Cir. 2001) ........................................................................ 6

United States v. Pruitt, 545 F.3d 416 (6th Cir. 2008) ........ 22

United States v. Rios-Beltran, 361 F.3d 1204

(9th Cir. 2004) ...................................................................... 20

United States v. Rockymore, 909 F.3d 167 (6th Cir.

2018) ..................................................................................... 22

United States v. Rosales, 516 F.3d 749 (9th Cir.),

cert. denied, 553 U.S. 1095 (2008) ..................................... 19

V

Cases—Continued:

Page

United States v. Simmons, 649 F.3d 237

(4th Cir. 2011) .................................................................. 5, 20

United States v. Valencia-Mendoza, 912 F.3d 1215

(9th Cir. 2019) ............................................................ 7, 12, 20

United States v. Wheeler:

886 F.3d 415 (4th Cir. 2018), cert. denied,

139 S. Ct. 1318 (2019) .......................................... 18, 21

139 S. Ct. 1318 (2019) ................................................ 10, 21

Walker v. English, 140 S. Ct. 910 (2020) ............................. 18

Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) ............. 16

Statutes and guidelines:

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214:

§ 105, 110 Stat. 1220 ........................................................ 11

18 U.S.C. 2 ................................................................................ 2

21 U.S.C. 802(44) (2006) ...................................................... 3, 6

21 U.S.C. 802(44) ..................................................................... 3

21 U.S.C. 841(a) ....................................................................... 1

21 U.S.C. 841(a)(1) ................................................................... 2

21 U.S.C. 841(b)(1)(A) (2006) .................................... 2, 3, 4, 12

21 U.S.C. 841(b)(1)(A) ....................................................... 6, 23

21 U.S.C. 846 .................................................................... 1, 2, 3

21 U.S.C. 851 ........................................................................ 3, 4

28 U.S.C. 2241 ............................................................... passim

28 U.S.C. 2244(b)(3) ............................................................... 15

28 U.S.C. 2253(c)(1) ............................................................... 16

28 U.S.C. 2255 ............................................................... passim

28 U.S.C. 2255(a) ............................................................. 11, 14

28 U.S.C. 2255(e) ............................................6, 8, 9, 10, 11, 13

28 U.S.C. 2255(f ) .................................................................... 16

VI

Statutes and guidelines—Continued:

Page

28 U.S.C. 2255(f )(3) ............................................................... 14

28 U.S.C 2255(h) ......................................... 9, 11, 13, 14, 15, 18

28 U.S.C. 2255(h)(1) ............................................................... 13

28 U.S.C. 2255(h)(2) ............................................... 9, 13, 14, 15

Wash. Rev. Code:

§ 9A.20.021(1)(c) (2004) ..................................................... 4

§ 69.50.4013 (2004) ............................................................. 3

§ 69.50.4013 (2007) ............................................................. 7

§ 69.50.4013(1) (2004) ........................................................ 3

§ 69.50.4013(2) (2004) ........................................................ 4

United States Sentencing Guidelines § 2L1.2,

comment. (n.2) (2015) ........................................................... 7

Miscellaneous:

U.S. Dep’t of Justice:

Fed. Bureau of Prisons, Find an Inmate,

https://www.bop.gov/inmateloc (last visited

Sept. 11, 2020) .............................................................. 6

Justice Manual (Apr. 2018) ........................................... 17

In the Supreme Court of the United States

No. 19-1365

RAMON HUESO, PETITIONER

v.

J. A. BARNHART, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-65a)

is reported at 948 F.3d 324. The order of the district

court (Pet. App. 66a-78a) is not published in the Federal

Supplement but is available at 2018 WL 6172513.

JURISDICTION

The judgment of the court of appeals was entered on

January 9, 2020. The petition for a writ of certiorari was

filed on June 8, 2020. The jurisdiction of this Court is

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

STATEMENT

Following a jury trial in the United States District

Court for the District of Alaska, petitioner was convicted of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. 841(a) and 846. Pet. App.

(1)

2

10a, 69a, 79a-80a. The district court sentenced petitioner to 240 months of imprisonment, to be followed by

ten years of supervised release. Id. at 11a, 81a, 83a.

The court of appeals affirmed. 420 Fed. Appx. 776.

After an unsuccessful attempt to vacate his sentence

under 28 U.S.C. 2255, see Pet. App. 11a, and an unsuccessful petition for a writ of habeas corpus under

28 U.S.C. 2241, Pet. App. 11a, in 2018 petitioner filed a

second petition for a writ of habeas corpus under

28 U.S.C. 2241 in the United States District Court for

the Eastern District of Kentucky, 18-cv-176 Doc. 1

(June 8, 2018). The district court denied the petition,

Pet. App. 66a-78a, and the court of appeals affirmed, id.

at 1a-65a.

1. From 2007 through May 2008, petitioner supplied

methamphetamine to co-conspirator Tova Weiss, who

in turn distributed the drugs in Ketchikan, Alaska.

Presentence Investigation Report (PSR) ¶ 30. Lawenforcement agents arrested petitioner and Weiss on

May 6, 2008, midway through Weiss’s sale of ten ounces

of methamphetamine to an undercover agent. PSR

¶¶ 22-28.

A federal grand jury in the District of Alaska charged

petitioner with conspiring to distribute and possess

with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. 841(b)(1)(A) (2006)

and 21 U.S.C. 846; and possessing with intent to distribute 50 grams or more of methamphetamine, in violation

of 18 U.S.C. 2, 21 U.S.C. 841(a)(1), and 21 U.S.C.

(b)(1)(A) (2006). Indictment 2-3. The district court

later dismissed the possession-with-intent count on the

government’s motion, 09-cr-48 Doc. 27, at 1 (Oct. 5,

2009), and petitioner proceeded to trial.

3

At the time of petitioner’s offense, the default statutory sentencing range for conspiring to distribute 50

grams or more of methamphetamine was ten years to

life imprisonment, but was 20 years to life imprisonment if the offender had a “a prior conviction for a felony drug offense.” 21 U.S.C. 841(b)(1)(A) (2006); see 21

U.S.C. 846. “The term ‘felony drug offense’ ” was defined to include “an offense that is punishable by imprisonment for more than one year under any law * * * of

a State * * * that prohibits or restricts conduct relating

to narcotic [and certain other] drugs.” 21 U.S.C. 802(44)

(2006); accord 21 U.S.C. 802(44).

Before trial, the government filed an information under 21 U.S.C. 851, stating that petitioner was subject to

an enhanced statutory minimum sentence of 20 years of

imprisonment based on a prior “felony drug offense.”

21 U.S.C. 841(b)(1)(A) (2006). See 09-cr-48 D. Ct. Doc.

25, at 1-2 (Oct. 2, 2009). The information identified two

2006 Washington drug convictions, both violations of

Washington Revised Code § 69.50.4013(1) (2004), as the

basis for the enhancement. See 09-cr-48 D. Ct. Doc. 25,

at 1-2. Although the information described the two convictions as “possession of methamphetamine with intent

to sell” and “possession of cocaine with intent to sell,”

ibid. (capitalization omitted), the government later

acknowledged a “clerical error” and clarified that the

convictions were for “ ‘possession’ ” of each drug, rather

than “ ‘possession with intent to sell,’ ” 10-30017 Gov’t

C.A. Br. 25 (Sept. 2, 2010). Under Washington Revised

Code § 69.50.4013 (2004), petitioner’s prior drug offenses each carried a maximum penalty of five years of

imprisonment, while the state sentencing guidelines set

a presumptive maximum term of six months of imprisonment, and petitioner had received concurrent terms

4

of 40 days of imprisonment. Pet. App. 10a-11a (citing

Wash. Rev. Code §§ 69.50.4013(2), 9A.20.021(1)(c) (2004)).

The jury found petitioner guilty on the conspiracy

count. Pet. App. 69a. At sentencing in the federal case,

petitioner did not dispute that his Washington drug convictions were prior convictions for a felony drug offense

that triggered an enhanced statutory minimum sentence of 20 years of imprisonment under 21 U.S.C.

841(b)(1)(A) (2006). Pet. App. 11a. The district court

sentenced petitioner to 20 years of imprisonment, to be

followed by ten years of supervised release. Id. at 81a,

83a.

The court of appeals affirmed. 420 Fed. Appx. 776.

Petitioner did not dispute on appeal that his prior

Washington convictions were for “felony drug offense[s]” within the meaning of 21 U.S.C. 841(b)(1)(A)

(2006), arguing only (as relevant here) that the government had failed to comply with the notice requirements

of 21 U.S.C. 851. See 10-30017 Pet. C.A. Br. 21-23 (July

1, 2010). The court of appeals rejected that argument,

finding the government’s Section 851 information “sufficient to give [petitioner] clear notice of the crime the

government intended to use as the basis for its request

for an enhanced sentence, despite the information’s errors and omissions.” 420 Fed. Appx. at 776.

2. Petitioner later filed a motion to vacate, set aside,

or correct his sentence under 28 U.S.C. 2255, raising

again some of the claims that he had pressed on direct

appeal and also claiming that he had received ineffective

assistance of trial counsel. 09-cr-48 D. Ct. Doc. 100, at

1 (Sept. 14, 2011). The district court denied the motion,

id. at 3, and denied a certificate of appealability, 09-cr48 D. Ct. Doc. 109 (Jan. 30, 2012). The court of appeals

5

also denied a certificate of appealability. 11-35855 C.A.

Order (May 15, 2012).

In 2013, petitioner filed a petition for a writ of habeas

corpus under 28 U.S.C. 2241 in the Eastern District of

Kentucky, the district in which he was confined. Pet.

App. 11a. As relevant here, petitioner contended that

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)

(en banc), established that his prior Washington drug

convictions were not “felony drug offenses” and that his

statutory minimum sentence thus should have been ten

years of imprisonment, rather than 20 years. Pet. App.

11a-13a. The court denied the petition, determining in

part that circuit precedent precluded petitioner from

challenging an alleged sentencing error in a Section

2241 petition. Id. at 13a (citing Hueso v. Sepanek, No.

13-cv-19, 2013 WL 4017117, at *5 (E.D. Ky. Aug. 6,

2013)).

Approximately three years later, the Sixth Circuit

stated in Hill v. Masters, 836 F.3d 591 (2016), that a defendant may properly bring a habeas petition under

Section 2241 if (1) the defendant was sentenced under

“the mandatory guidelines regime” that predated

United States v. Booker, 543 U.S. 220 (2005); (2) the defendant is foreclosed from filing a successive petition

under 28 U.S.C. 2255; and (3) “a subsequent, retroactive

change in statutory interpretation by the Supreme

Court reveals that a previous conviction is not a predicate offense for a career-offender enhancement.” Hill,

836 F.3d at 599-600.

3. In 2018, petitioner filed a second petition for a

writ of habeas corpus under 28 U.S.C. 2241 in the

6

Eastern District of Kentucky. 18-cv-176 D. Ct. Doc. 1. 1

As relevant here, petitioner again contended that

Carachuri-Rosendo and Simmons established that he

was ineligible for an enhanced sentence under Section

841(b)(1)(A) on the theory that those cases established

that his prior Washington drug convictions were not

“punishable by imprisonment for more than one year.”

21 U.S.C. 802(44) (2006). See Pet. App. 70a-71a; 18-cv-176

D. Ct. Doc. 1, at 7. Petitioner also argued that, in light

of Hill v. Masters, the district court had jurisdiction to

entertain his habeas petition under the so-called “saving clause” in 28 U.S.C. 2255(e). 18-cv-176 D. Ct. Doc.

1-1, at 7-9. Ordinarily, a federal prisoner may seek postconviction relief only by motion under 2255; a habeas

petition under Section 2241 “shall not be entertained.”

28 U.S.C. 2255(e). But the saving clause creates an exception when it “appears that the remedy by motion

[under Section 2255] is inadequate or ineffective to test

the legality of his detention.” Ibid.

The district court denied petitioner’s second Section

2241 petition. Pet. App. 66a-78a. The court explained

that circuit precedent established that “[a] federal prisoner generally may not use a § 2241 petition to challenge the enhancement of his sentence.” Id. at 71a (citing United States v. Peterman, 249 F.3d 458, 461 (6th

Cir. 2001)). Although Hill v. Masters had “articulated

a very narrow exception to this general rule,” the court

found that petitioner’s Section 2241 claims did not satisfy the requirements of that exception because, as rel-

Petitioner was subsequently relocated to Moshannon Valley

Correctional Center in Philipsburg, Pennsylvania. See Fed. Bureau

of Prisons, U.S. Dep’t of Justice, Find an Inmate, https://www.

bop.gov/inmateloc (search for record for register 35937-086).

1

7

evant here, petitioner “was sentenced in 2010 * * * under a discretionary guidelines regime.” Id. at 72a. The

court further determined, based on Ninth Circuit precedent, that petitioner had “failed to show that the maximum sentence he faced with respect to his prior Washington State convictions was anything other than the

maximum five-year term provided by Washington statutory law.” Id. at 78a; see id. at 75a-78a.

4. While petitioner’s appeal from the denial of his

second Section 2241 petition was pending in the Sixth

Circuit, the Ninth Circuit concluded in United States v.

Valencia-Mendoza, 912 F.3d 1215 (2019), that when determining whether a defendant’s prior conviction qualifies as a “felony” that is “ ‘punishable’ by more than one

year” of imprisonment under Sentencing Guidelines

§ 2L1.2, comment. (n.2) (2015), “the [sentencing] court

must examine both the elements and the sentencing factors that correspond to the crime of conviction.”

912 F.3d at 1222 (emphasis omitted). The court of appeals acknowledged that it had previously held otherwise, but it concluded that those earlier holdings were

“ ‘clearly irreconcilable’ ” with this Court’s decisions in

Carachuri-Rosendo and Moncrieffe v. Holder, 569 U.S.

184 (2013). Valencia-Mendoza, 912 F.3d at 1219 (citation omitted). The Ninth Circuit further held that Valencia-Mendoza’s 2007 conviction for possession of cocaine, in violation of Washington Revised Code

§ 69.50.4013 (2007), was, “as actually prosecuted and adjudicated,” “punishable under Washington law by no

more than six months in prison.” Valencia-Mendoza,

912 F.3d at 1224.

5. The court of appeals affirmed the denial of petitioner’s second Section 2241 petition, rejecting petitioner’s contention that Valencia-Mendoza entitled him

8

to habeas relief. Pet. App. 1a-33a. Although it recognized that Valencia-Mendoza “undercut” the district

court’s substantive analysis of petitioner’s Section 2241

claim, the court of appeals declined to “opine on the

merits of [petitioner’s] claim that his state convictions

are not ‘felony drug offenses,’ ” observing that “ ‘[d]iverse

viewpoints’ exist on this ‘difficult question.’ ” Id. at

13a-14a (citation omitted). It instead explained that

Section 2255(e)’s saving clause did not authorize a third

collateral attack, in the form of a habeas petition, based

on the Ninth Circuit’s revised interpretation of the relevant statutes.

Citing Hill v. Masters, the court of appeals acknowledged that it has “allow[ed] new habeas petitions even

if a later Supreme Court decision affects only a prisoner’s sentence, not just the prisoner’s conviction.” Pet.

App. 3a. The court declined, however, “to go further

still” and hold that “prisoners barred from filing a second § 2255 motion may seek habeas relief under § 2241

based on new decisions from the circuit courts, not just

the Supreme Court.” Ibid. The court of appeals explained that “a new statutory decision from a circuit

court” does not “suffice to show § 2255’s inadequacy”

for purposes of the Section 2255(e) saving clause and

determined that the saving clause instead requires, at a

minimum, “a Supreme Court decision that adopts a new

interpretation of a statute after the completion of the

initial § 2255 proceedings.” Id. at 16a-17a; see id. at

18a-31a.

The court of appeals explained that the unavailability of habeas relief based on a new circuit statutoryinterpretation decision “follows both from § 2255’s text

and structure and from the backdrop against which Congress enacted § 2255(h)’s limits in 1996.” Pet. App. 17a;

9

see id. at 17a-31a. The court observed that Section

2255(h) allows prisoners to file a second Section 2255

motion “only if the Supreme Court adopts a new rule of

constitutional law.” Id. at 3a (citing 28 U.S.C. 2255(h)(2)).

“We would write this limit out of the statute,” the court

stated, “if we held that new rules from the circuit courts

(whether of statutory or constitutional law) could render § 2255 ‘inadequate or ineffective’ and trigger the

right to a second round of litigation under § 2241.”

Ibid.; see id. at 17a-25a. The court of appeals further

observed that allowing circuit decisions to satisfy Section 2255(e)’s saving clause would, at a minimum, “trigger a difficult ‘choice-of-law question’ ” regarding which

circuit precedent a court should apply when evaluating

a Section 2241 claim. Id. at 26a (citation omitted); see

id. at 25a-28a.

The court of appeals accordingly determined that the

saving clause in Section 2255(e) did not permit petitioner to bring a Section 2241 claim based on the Ninth

Circuit’s decision in Valencia-Mendoza or the Fourth

Circuit’s decision in Simmons. Pet. App. 31a. The court

also reasoned that Carachuri-Rosendo could not establish the inadequacy of petitioner’s Section 2255 remedies because this Court issued Carachuri-Rosendo

while petitioner’s direct appeal was still pending, “well

before” petitioner filed his first Section 2255 motion.

Id. at 32a. “Indeed,” the court of appeals stated, “if [petitioner] had timely raised his claim” under CarachuriRosendo on direct appeal or in his first Section 2255 motion, “the Ninth Circuit may well have found that its

earlier decisions conflicted with this ‘higher intervening

authority’ in his case, not in Valencia-Mendoza’s case.”

Ibid.

10

Judge Moore filed a dissenting opinion. Pet. App.

34a-65a. Judge Moore stated that, in her view, petitioner “should not be foreclosed from” seeking habeas

relief under Section 2241 and, if allowed to proceed with

such a claim, “would almost certainly prevail based on

the intervening change in law.” Id. at 34a.

ARGUMENT

Petitioner renews his contention (Pet. 23-24) that the

saving clause in 28 U.S.C. 2255(e) permits a federal

prisoner to challenge the applicability of a statutoryminimum sentence in a petition for a writ of habeas corpus under 28 U.S.C. 2241 based on an intervening circuit decision of statutory interpretation, and asserts

(Pet. 11-24) a circuit conflict on that issue. Further review is unwarranted. The court of appeals correctly determined that petitioner is not entitled to saving-clause

relief here. And this Court recently denied a petition

for a writ of certiorari filed by the government seeking

review of the circuit conflict on the scope of the saving

clause. See United States v. Wheeler, 139 S. Ct. 1318

(2019) (No. 18-420). The same considerations that would

have supported denial of the petition in Wheeler would

apply here as well. In addition, the petition here would

be an unsuitable vehicle in which to address the issue

because petitioner would not be entitled to relief even

in the circuits that have given the saving clause the most

prisoner-favorable interpretation. And the petition

here presents a complicated scenario, which courts of

appeals have not fully addressed, in which a prisoner

seeks to rely on a change in the law in one circuit to obtain habeas relief in another.

1. The court of appeals correctly determined that

petitioner cannot seek habeas relief under 28 U.S.C.

2241 for his statutory claim.

11

a. Section 2255 provides the general mechanism for

a federal prisoner to obtain collateral review of his conviction or sentence. See 28 U.S.C. 2255(a). Subject to

procedural limitations, such a prisoner may file a single

motion under Section 2255 that asserts any ground eligible for collateral relief. See ibid. In 1996, Congress

passed and the President signed the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), Pub. L.

No. 104-132, § 105, 110 Stat. 1220, which restricted the

grounds on which federal prisoners may file second or

successive Section 2255 motions. AEDPA limited the

availability of such motions to cases involving either

(1) persuasive new evidence that the prisoner was factually not guilty of the offense or (2) a new rule of constitutional law made retroactive by this Court to cases

on collateral review. 28 U.S.C. 2255(h); cf. Tyler v.

Cain, 533 U.S. 656, 661-662 (2001) (interpreting the

state-prisoner analogue to Section 2255(h)). AEDPA

did not, however, provide for successive Section 2255

motions based on intervening statutory decisions.

That omission does not imply that a prisoner may

seek relief based on an intervening statutory decision

through a writ of habeas corpus under 28 U.S.C. 2241

instead. Under the saving clause of Section 2255(e), a

prisoner may seek habeas relief only if the “remedy by

motion [under Section 2255] is inadequate or ineffective

to test the legality of his detention.” 28 U.S.C. 2255(e).

That language indicates a focus on whether a particular

challenge to the legality of the prisoner’s detention was

cognizable under Section 2255, not on the likelihood

that the challenge would have succeeded in a particular

court at a particular time.

As the Eleventh Circuit explained in McCarthan v.

Director of Goodwill Industries-Suncoast, Inc., 851

12

F.3d 1076 (en banc), cert. denied, 138 S. Ct. 502 (2017),

“ ‘[t]o test’ means ‘to try,’ ” and “[t]he opportunity to test

or try a claim * * * neither guarantees any relief nor

requires any particular probability of success; it guarantees access to a procedure.” Id. at 1086 (citation omitted). “In this way, the clause is concerned with process

—ensuring the petitioner an opportunity to bring his

argument—not with substance—guaranteeing nothing

about what the opportunity promised will ultimately

yield in terms of relief.” Prost v. Anderson, 636 F.3d

578, 584 (10th Cir. 2011) (Gorsuch, J.) (emphases omitted), cert. denied, 565 U.S. 1111 (2012).

This case is illustrative. On both direct review and

in his initial motion under Section 2255, petitioner had

the opportunity to raise, and be heard on, his claim that

his Washington drug convictions are not “felony drug

offense[s]” under 21 U.S.C. 841(b)(1)(A) (2006). Whether or not the Ninth Circuit had adverse panel precedent

on that point, it did not foreclose petitioner from pressing the issue. Cf. Bousley v. United States, 523 U.S.

614, 623 (1998) (“[F]utility cannot constitute cause [to

excuse a procedural default] if it means simply that a

claim was unacceptable to that particular court at that

particular time.”) (citation and internal quotation marks

omitted). Indeed, the defendant in United States v.

Valencia-Mendoza, 912 F.3d 1215 (2019), persuaded a

panel of the Ninth Circuit to set aside the prior circuit

precedent that petitioner contends (Pet. 4) foreclosed

his current claim that his Washington convictions are

not felony drug offenses. See Valencia-Mendoza, 912

F.3d at 1222. In reaching that decision, the Ninth Circuit

concluded that those earlier cases were “irreconcilable”

with this Court’s intervening decision in CarachuriRosendo v. Holder, 560 U.S. 563 (2010). Valencia-

13

Mendoza, 912 F.3d at 1222. Nothing prevented petitioner from pressing the same argument in his first Section 2255 motion, which petitioner filed after this Court

issued Carachuri-Rosendo. See Pet. App. 32a.

b. Treating the remedy in Section 2255 as “inadequate or ineffective” to test the legality of petitioner’s

confinement would place Section 2255(e) at crosspurposes with Section 2255(h). The latter provision allows “second or successive” motions under Section 2255

only when a prisoner relies on “newly discovered evidence” that strongly indicates his factual innocence, 28

U.S.C. 2255(h)(1), or a “new rule of constitutional law,

made retroactive to cases on collateral review by the

Supreme Court,” 28 U.S.C. 2255(h)(2), neither of which

encompasses petitioner’s claim here. The logical inference from the language Congress drafted is that Congress intended subsections (h)(1) and (2) to define the

only available grounds on which a federal inmate who

has previously filed a Section 2255 motion can obtain

further collateral review of his conviction or sentence.

“The saving clause does not create a third exception.”

McCarthan, 851 F.3d at 1090 (emphasis omitted).

In particular, the most natural reason for Congress

to have included the specific phrase “of constitutional

law” in Section 2255(h)(2) was to make clear that second

or successive motions based on new nonconstitutional

rules cannot go forward, even when this Court has given

those rules retroactive effect. The Congress that enacted AEDPA could not have anticipated the exact statutory claims that have arisen in the ensuing two decades, but necessarily would have understood that statutory claims of some kind would be raised. It would be

anomalous to characterize the Section 2255 remedy as

“inadequate or ineffective” when the unavailability of

14

Section 2255 relief in a particular case results from an

evident congressional choice concerning the appropriate balance between finality and additional error correction.

Other provisions within Section 2255 reinforce the

deliberateness of Congress’s design. Under Section

2255(a), a federal prisoner may file an initial motion under Section 2255 “claiming the right to be released upon

the ground that the sentence was imposed in violation

of the Constitution or laws of the United States.” 28

U.S.C. 2255(a) (emphasis added); see Davis v. United

States, 417 U.S. 333, 345-347 (1974). The time limit for

seeking Section 2255 relief likewise anticipates nonconstitutional claims, allowing a motion to be filed within

one year after “the date on which the right asserted was

initially recognized by the Supreme Court, if that right

has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review,” 28 U.S.C. 2255(f )(3), without limitation to decisions of constitutional law. See Dodd v. United States,

545 U.S. 353, 357 (2005).

Section 2255(h), however, contains a similarly worded

provision that does limit Section 2255 relief following a

prior unsuccessful motion to claims relying on intervening decisions of “constitutional law” made retroactive by

this Court. 28 U.S.C. 2255(h)(2). That contrast strengthens the inference that Congress deliberately intended

to preclude statutory claims following an initial unsuccessful Section 2255 motion. See Prost, 636 F.3d at 585586, 591; cf. Russello v. United States, 464 U.S. 16, 23

(1983) (presuming that Congress’s choice of different

language in nearby provisions of the same statute is deliberate). Petitioner’s reading of the saving clause would

allow such statutory claims precisely when—indeed,

15

precisely because—Section 2255(h) does not. That

reading would render AEDPA’s restrictions on second

or successive motions largely self-defeating. Cf. United

States v. Fausto, 484 U.S. 439, 453 (1988) (referring to

the “classic judicial task of reconciling many laws enacted over time, and getting them to ‘make sense’ in

combination”).

In contrast, the Tenth and Eleventh Circuits’ interpretation of the statute respects the balance Congress

struck between finality and error-correction, while still

leaving the saving clause with meaningful work to do.

For example, the saving clause ensures that some form

of collateral review is available if a federal prisoner

seeks “to challenge the execution of his sentence, such

as the deprivation of good-time credits or parole determinations.” McCarthan, 851 F.3d at 1093; see id. at

1081. Such challenges are not cognizable under Section

2255, which is limited to attacks on the sentence or the

underlying conviction. “The saving clause also allows a

prisoner to bring a petition for a writ of habeas corpus

when the sentencing court is unavailable,” such as when

a military court martial “has been dissolved.” Id. at

1093; see Prost, 636 F.3d at 588.

c. Petitioner’s reading of the saving clause would

also have the practical effect of granting federal inmates greater latitude to pursue claims for collateral relief based on intervening statutory decisions than to

pursue the constitutional claims that Section 2255(h)(2)

specifically authorizes. For example, the requirement

that a second or successive Section 2255 motion be certified by the court of appeals to ensure compliance with

the strictures of subsection (h), see 28 U.S.C. 2244(b)(3),

does not apply to a petition for a writ of habeas corpus

16

under the saving clause. And a habeas petition is subject neither to AEDPA’s one-year limitations period,

28 U.S.C. 2255(f ), nor to AEDPA’s procedure for obtaining a certificate of appealability if relief is denied by

the district court, 28 U.S.C. 2253(c)(1). Petitioner’s interpretation of the statute thus provides “a superior

remedy” to prisoners with purely statutory claims than

to those with constitutional claims. McCarthan, 851

F.3d at 1091. The Congress that enacted AEDPA in

1996 could not have intended that result when it enacted

a provision designed to limit the availability of postconviction relief by redefining the point at which finality

concerns outweigh any interest in additional errorcorrection.

Furthermore, allowing an inmate’s second or successive collateral attack to proceed by way of habeas corpus subverts “the legislative decision of 1948” that is reflected in Section 2255—namely, that a federal inmate’s

collateral challenge to his conviction or sentence should,

where possible, proceed before the original sentencing

court. Webster v. Daniels, 784 F.3d 1123, 1149 (7th Cir.

2015) (en banc) (Easterbrook, J., dissenting). Congress

created Section 2255 to channel postconviction disputes

about the legality of a conviction or sentence away from

the district of confinement and into the district of conviction and sentencing. See Hill v. United States, 368

U.S. 424, 427-428 (1962); United States v. Hayman, 342

U.S. 205, 219 (1952). Allowing a federal inmate to bring

claims in the district of his confinement “resurrects the

problems that section 2255 was enacted to solve, such as

heavy burdens on courts located in districts with federal

prisons.” McCarthan, 851 F.3d at 1092.

Although adherence to the statutory text may lead

to “harsh results in some cases,” courts are “not free to

17

rewrite the statute that Congress has enacted.” Dodd,

545 U.S. at 359. The Department of Justice has accordingly supported efforts to introduce legislation that

would enable some prisoners to benefit from laterissued, non-constitutional rules announced by this Court.

And, of course, in the interim such prisoners are entitled to seek executive clemency, one recognized ground

for which is “undue severity” of a prisoner’s sentence.

U.S. Dep’t of Justice, Justice Manual § 9-140.113 (Apr.

2018).

2. Petitioner correctly identifies (Pet. 11-16) a division of authority among the courts of appeals on the

scope of the saving clause for statutory claims. As noted

above, the Tenth and Eleventh Circuits have correctly

determined that habeas relief under the saving clause is

unavailable based on a retroactive rule of statutory construction. See McCarthan, 851 F.3d at 1086; see also

Prost, 636 F.3d at 590-591. By contrast, nine courts of

appeals—including the Sixth Circuit—would permit

such relief in some circumstances. See Pet. 12-14; Pet.

App. 8a-9a; Gov’t Pet. at 24 n.2, Wheeler, supra (No.

18-420). The more expansive view of the saving clause

in those circuits generally requires a prisoner to demonstrate a “material change in the applicable law” since

his initial Section 2255 motion that undermines his

conviction—for example, by indicating that his conduct

was not in fact a crime on a ground that previously was

foreclosed by controlling precedent. Alaimalo v.

United States, 645 F.3d 1042, 1047-1048 (9th Cir. 2011)

(citation omitted); see, e.g., Triestman v. United States,

124 F.3d 361, 379 (2d Cir. 1997) (similar). At least three

of the nine circuits, including the Sixth Circuit, have extended that concept to encompass not just claims challenging the conviction, but also some claims challenging

18

the sentence—for example, when a statutory minimum

is no longer applicable. See United States v. Wheeler,

886 F.3d 415, 427-428 (4th Cir. 2018), cert. denied,

139 S. Ct. 1318 (2019) (No. 18-420); Hill v. Masters, 836

F.3d 591, 595-596 (6th Cir. 2016); Brown v. Rios, 696

F.3d 638, 640-641 (7th Cir. 2012). 2 Those circuits generally require the sentencing error to be “sufficiently

grave to be deemed a miscarriage of justice or a fundamental defect.” Hill, 836 F.3d at 595; see Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013). The Sixth Circuit additionally “requires a Supreme Court decision,”

rather than a circuit decision, “that adopts a new interpretation of a statute after the completion of the initial

§ 2255 proceedings.” Pet. App. 17a.

But notwithstanding that circuit conflict and its importance, this Court recently declined to review the issue when it was raised in the government’s petition for

a writ of certiorari in Wheeler, supra (No. 18-420), last

year. The division of authority that petitioner identifies

on whether the saving clause is ever available for statutory claims precluded by Section 2255(h) has not meaningfully changed since that time. The court of appeals

in this case viewed its decision as consistent with circuit

precedent. See Pet. App. 16a-17a. The circuit conflict

therefore does not warrant this Court’s review any

more than it did before. And this Court has recently

denied other petitions for writs of certiorari that sought

review of the conflict. See, e.g., Higgs v. Wilson, 140

S. Ct. 934 (2020) (No. 19-401); Walker v. English, 140

A Ninth Circuit panel recently adopted a similar view, see Allen

v. Ives, 950 F.3d 1184 (2020), but the government has filed a petition

for rehearing en banc from that decision. As of September 11, 2020,

that en banc petition remains pending in the court of appeals. See

Docket, Allen v. Ives, No. 18-35001 (9th Cir.).

2

19

S. Ct. 910 (2020) (No. 19-52); Quary v. English, 140

S. Ct. 898 (2020) (No. 19-5154); Jones v. Underwood, 140

S. Ct. 859 (2020) (No. 18-9495); Dyab v. English, 140

S. Ct. 847 (2020) (No. 19-5241).

3. In any event, even if the conflict warranted review

in an appropriate case, this is not a suitable vehicle because petitioner would not be entitled to relief even in the

circuits that have adopted the most prisoner-favorable

interpretation of the saving clause. Those circuits generally have granted relief only when a prisoner can

show (1) that his claim was foreclosed by (erroneous)

precedent at the time of his sentencing, direct appeal,

and initial motion under Section 2255; and (2) that an

intervening decision, made retroactive on collateral review, has since established that he is in custody for an

act that the law does not make criminal, has been sentenced in excess of an applicable maximum under a statute or under a mandatory sentencing guidelines regime,

or has received an erroneous statutory minimum sentence. See, e.g., Hill, 836 F.3d at 595-596, 598-600; Rios,

696 F.3d at 640-641; see also Reyes-Requena v. United

States, 243 F.3d 893, 902-904 (5th Cir. 2001). Petitioner

cannot satisfy those requirements.

Petitioner contends (Pet. 4, 6-7) that, at the time of

his sentencing, his present claim was foreclosed by

Ninth Circuit precedent holding that a court should

“look to the state’s statutory maximum sentence and

not the maximum sentence available under the state

sentencing guidelines” when determining whether a

prior conviction for a state drug offense was punishable

by more than one year of imprisonment. United States

v. Rosales, 516 F.3d 749, 758 (9th Cir.) (citing United

States v. Murillo, 422 F.3d 1152, 1153-1154 (9th Cir.

2005)), cert. denied, 553 U.S. 1095 (2008); see also

20

Murillo, 422 F.3d at 1153-1154; United States v. RiosBeltran, 361 F.3d 1204, 1208-1209 (9th Cir. 2004). But

when a panel of the Ninth Circuit reversed the Ninth

Circuit’s position on that issue in Valencia-Mendoza, it

found that the rule established by those earlier cases

was “irreconcilable” with this Court’s 2010 decision in

Carachuri-Rosendo. Valencia-Mendoza, 912 F.3d at

1222. And as the court of appeals observed here, this

Court decided Carachuri-Rosendo “well before [petitioner] filed his § 2255 motion in June 2011,” and petitioner thus could have himself relied on CarachuriRosendo in that motion or even “on the direct appeal in

his criminal case, which was decided in March 2011.”

Pet. App. 32a.

Accordingly, if petitioner had raised his current

claim in his first Section 2255 motion, “the Ninth Circuit

may well have found that its earlier decisions conflicted

with this ‘higher intervening authority’ in his case, not

in Valencia-Mendoza’s.” Pet. App. 32a (quoting ValenciaMendoza, 912 F.3d at 1219). Petitioner thus has not

shown that his current claim was foreclosed by binding

precedent at the time of his direct appeal and first

Section 2255 motion. Indeed, as petitioner acknowledges (Pet. 9), his Section 2241 claim originally rested

on Carachuri-Rosendo and United States v. Simmons,

649 F.3d 237 (4th Cir. 2011) (en banc), which was itself

decided while his Section 2255 proceedings were pending, and is, in any event, not controlling precedent outside the Fourth Circuit. Under these circumstances, his

reliance on Valencia-Mendoza as intervening law that

eliminates a preexisting obstacle to relief is misplaced.

This Court has denied petitions for writs of certiorari

in cases in which the petitioners would not have been

eligible for relief even in circuits that have allowed some

21

statutory challenges to a conviction or sentence under

the saving clause. See, e.g., Gov’t Br. in Opp. at 12-14,

Dyab, supra (No. 19-5241); Gov’t Br. in Opp. at 21-22,

Venta v. Jarvis, 138 S. Ct. 648 (2018) (No. 17-6099);

Gov’t Br. in Opp. at 24-27, Young v. Ocasio, 138 S. Ct.

2673 (2018) (No. 17-7141). The Court should follow the

same course here.

4. Petitioner errs in asserting (Pet. 20-21) that this

case is “a far better vehicle for review” than Wheeler,

supra (No. 18-420). Pet. 20. Petitioner contends (Pet.

20) that Wheeler presented potential mootness concerns

because of the possibility that the defendant there

would complete his prison sentence before this Court

could complete its review. But in fact the district court

in Wheeler ordered the defendant released approximately eight months before his term of imprisonment

would have expired, thereby ensuring that the controversy would remain live. See Letter from Noel J. Francisco, Solicitor Gen., to Scott S. Harris, Clerk of Court

at 1, Wheeler, supra (Feb. 28, 2019); see also Letter

from Joshua B. Carpenter to Scott S. Harris, Clerk of

Court at 1, Wheeler, supra (Mar. 1, 2019) (respondent’s

letter acknowledging that “concerns of potential mootness” would “no longer be present”).

Petitioner’s case, moreover, presents complications

that Wheeler did not. There, the Fourth Circuit allowed

relief under the saving clause based on its own updated

circuit law making unambiguously clear that, as a statutory matter, the sentencing court had erroneously applied a statutory minimum. See Wheeler, 886 F.3d at

429 (extending the availability of saving-clause relief to

prisoners relying on a “change in this circuit’s controlling law”). Here, however, petitioner identifies no Sixth

Circuit decision establishing that his enhanced sentence

22

is unlawful, and as the court of appeals noted, its “cases

point in opposite directions on the merits of [petitioner’s] claim.” Pet. App. 27a (comparing United

States v. Rockymore, 909 F.3d 167, 170-171 (6th Cir.

2018), with United States v. Montgomery, 893 F.3d 935,

940-941 (6th Cir. 2018)); see also United States v.

Pruitt, 545 F.3d 416, 423 (6th Cir. 2008) (addressing related question in context of sentencing guidelines). Petitioner now principally relies on the Ninth Circuit’s decision in Valencia-Mendoza. But nothing requires the

Sixth Circuit to agree with that decision. Cf. United

States v. Geozos, 870 F.3d 890, 901 (9th Cir. 2017) (disagreeing with the Eleventh Circuit’s conclusion that

Florida robbery is a violent felony under the ACCA’s

“ ‘elements clause’ ”) (citation omitted), abrogated by

Stokeling v. United States, 139 S. Ct. 544 (2019).

That wrinkle is important for two reasons. First, it

would require this Court to decide as a threshold matter

whether, to establish the “miscarriage of justice” or

“fundamental defect” required for saving-clause relief

on the basis of a change in circuit precedent, Hill, 836

F.3d at 595, a habeas applicant must demonstrate the

unlawfulness of his detention under the law of the circuit of conviction, the law of the circuit of confinement,

or both. As the court of appeals recognized, that is an

underdeveloped issue in the courts of appeals that could

complicate this Court’s review of the question presented here. Pet. App. 26a (“When a court of confinement hears a claim in a § 2241 petition, should it apply

its precedent or the circuit precedent from the sentencing court?”); compare, e.g., Hahn v. Moseley, 931 F.3d

295, 301 (4th Cir. 2019) (applying the law of the circuit

of conviction when the government did not argue otherwise), with, e.g., Chazen v. Marske, 938 F.3d 851, 860

23

(7th Cir. 2019) (reserving the question but applying the

law of the circuit of confinement because the government agreed to it).

Second, petitioner’s entitlement to relief depends

on a view of the saving clause expansive enough to

encompass the right to ask the Sixth Circuit to decide

an issue that it has not yet addressed—namely, whether

Washington drug convictions like petitioner’s constitute

“felony drug offense[s]” for purposes of Section

841(b)(1)(A). See Pet. App. 14a. It is not clear that any

circuit would privilege prisoners convicted out-ofcircuit over prisoners convicted in-circuit by allowing

them to invoke the saving clause to obtain merits review

in the first instance of an unsettled statutory issue. Cf.

Hahn, 931 F.3d at 301 (allowing such relief when the

government did not contest the availability of relief on

that ground). Indeed, the Seventh Circuit has explained that saving-clause relief is categorically unavailable “[w]hen there is a circuit split” because “there

is no presumption that the law in the circuit that favors

the prisoner is correct, and hence there is no basis for

supposing him unjustly convicted.” In re Davenport,

147 F.3d 605, 612 (1998). Similar reasoning would also

have force when no circuit conflict has yet developed,

but the circuit decision on which a petitioner relies is

subject to reasonable dispute. The court of appeals evidently believed that Valencia-Mendoza is such a decision because it declined to “opine on the merits of [petitioner’s] claim that his state convictions are not ‘felony

drug offenses,’ ” observing that “ ‘[d]iverse viewpoints’

exist on this ‘difficult question.’ ” Pet. App. 14a (citations omitted).

24

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

BRIAN C. RABBITT

Acting Assistant Attorney

General

JENNY C. ELLICKSON

Attorney

SEPTEMBER 2020