Opposition Brief — Alfred J. Walker, Petitioner v. N. C. English, Warden

No. 19-52

In the Supreme Court of the United States

ALFRED J. WALKER, PETITIONER

v.

N.C. ENGLISH, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

JOHN M. PELLETTIERI

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 a prisoner, whose

Section 2255 motion challenging the applicability of a

statutory minimum was denied based on circuit precedent, may later rely on a change in the interpretation of

the relevant statute in the circuit where he was convicted to seek habeas relief in a different circuit that has

not addressed the statutory-interpretation issue.

(I)

TABLE OF CONTENTS

Page

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

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

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

Argument....................................................................................... 6

Conclusion ................................................................................... 19

TABLE OF AUTHORITIES

Cases:

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

(9th Cir. 2011) ...................................................................... 13

Bousley v. United States, 523 U.S. 614 (1998) ...................... 8

Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013) ............... 14

Brown v. Rios, 696 F.3d 638 (7th Cir. 2012) ....................... 14

Chazen v. Marske, No. 18-3268, 2019 WL 4254295

(7th Cir. Sept. 9, 2019) .................................................. 16, 17

Davenport, In re, 147 F.3d 605 (7th Cir. 1998) ................... 17

Davis v. United States, 417 U.S. 333 (1974) ....................... 10

Dodd v. United States, 545 U.S. 353 (2005) .................. 10, 13

Hahn v. Moseley, 931 F.3d 295 (4th Cir. 2019) ............ 16, 17

Hill v. Masters, 836 F.3d 591 (6th Cir. 2016)................ 14, 16

Hill v. United States, 368 U.S. 424 (1962)........................... 12

Johnson v. United States, 135 S. Ct. 2551 (2015) ................. 3

Koons v. United States, 138 S. Ct. 1783 (2018)................... 15

Mathis v. United States, 136 S. Ct. 2243 (2016) ............... 4, 8

McCar than v. Director of Goodwill Indus.-Suncoast,

Inc., 851 F.3d 1076 (11th Cir.), cert. denied,

138 S. Ct. 502 (2017) ....................................7, 8, 9, 11, 12, 13

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

cert. denied, 565 U.S. 1111 (2012) ..................5, 8, 10, 11, 13

Russello v. United States, 464 U.S. 16 (1983) ..................... 10

(III)

IV

Cases—Continued:

Page

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

(2d Cir. 1997) ....................................................................... 13

Tyler v. Cain, 533 U.S. 656 (2001) ......................................... 7

United States v. Bell, 445 F.3d 1086 (8th Cir. 2006) ............ 3

United States v. Fausto, 484 U.S. 439 (1988) ..................... 11

United States v. Geozos, 870 F.3d 890

(9th Cir. 2017), abrogated by Stokeling v.

United States, 139 S. Ct. 544 (2019) .................................. 16

United States v. Hayman, 342 U.S. 205 (1952) .................. 12

United States v. Naylor, 887 F.3d 397

(8th Cir. 2018) .............................................................. 4, 8, 18

United States v. Phelps, 17 F.3d 1334 (10th Cir.),

cert. denied, 513 U.S. 844 (1994) ....................................... 16

United States v. Stitt, 139 S. Ct. 399 (2018) ........................ 18

United States v. Wheeler:

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

139 S. Ct. 1318 (2019) .......................................... 14, 16

139 S. Ct. 1318.................................................................... 6

Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) ............. 12

Statutes:

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, § 105, 110 Stat. 1220................ 7

Armed Career Criminal Act of 1984,

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

18 U.S.C. 924(e)(1)......................................................... 1, 2

18 U.S.C. 924(e)(2)(B)(ii) .................................................. 3

18 U.S.C. 922(g)(1) ............................................................... 1, 2

18 U.S.C. 924(a)(2) ................................................................... 2

28 U.S.C. 2241 .............................................................. 2, 4, 6, 7

28 U.S.C. 2253(c)(1) ............................................................... 12

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

V

Statutes—Continued:

Page

28 U.S.C. 2255(a) ............................................................... 7, 10

28 U.S.C. 2255(e) ................................................... 4, 6, 7, 9, 15

28 U.S.C. 2255(f ) .................................................................... 12

28 U.S.C. 2255(f )(3) ............................................................... 10

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

28 U.S.C. 2255(h)(1) ............................................................. 7, 9

28 U.S.C. 2255(h)(2) ................................................. 7, 9, 10, 11

Mo. Rev. Stat. § 569.170 (West 1979) ............................ 17, 18

Miscellaneous:

U.S. Dep’t of Justice, Justice Manual (Apr. 2018) ............ 13

In the Supreme Court of the United States

No. 19-52

ALFRED J. WALKER, PETITIONER

v.

N.C. ENGLISH, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-4a)

is not published in the Federal Reporter but is reprinted at 770 Fed. Appx. 430. The order of the district

court (Pet. App. 5a-13a) is not published in the Federal

Supplement but is available at 2018 WL 5923488.

JURISDICTION

The judgment of the court of appeals was entered on

May 16, 2019. The petition for a writ of certiorari was

filed on July 8, 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 Western District of Missouri, petitioner

was convicted on one count of possession of a firearm by

a felon, in violation of 18 U.S.C. 922(g)(1) and 924(e)(1).

See Pet. App. 24a. He was sentenced to 180 months of

(1)

2

imprisonment, to be followed by five years of supervised

release. Judgment 1-3. After the court of appeals affirmed, Pet. App. 24a-25a, petitioner filed a motion

to vacate, set aside, or correct his sentence under

28 U.S.C. 2255, which the district court denied, Pet.

App. 26a-27a. The court of appeals subsequently denied

petitioner’s application for permission to file a second

or successive motion for relief under 28 U.S.C. 2255.

Pet. App. 28a. Petitioner then filed a petition for a writ

of habeas corpus under 28 U.S.C. 2241, which the district court dismissed for lack of jurisdiction. Pet. App.

12a. The court of appeals affirmed. Id. at 1a-4a.

1. A police officer in Kansas City, Missouri, arrested

petitioner after observing him fighting with a man who

had accused petitioner of breaking into his house.

Presentence Investigation Report (PSR) ¶¶ 7-8. The officer found a Winchester .12-gauge shotgun inside a

tarp that petitioner had been carrying. PSR ¶ 9. Petitioner admitted to police that he possessed the shotgun

and had prior felony convictions. PSR ¶ 10; see PSR

¶¶ 32-33, 36-39, 41. A federal grand jury in the Western

District of Missouri returned a single-count indictment

charging petitioner with possession of a firearm by a

felon, in violation of 18 U.S.C. 922(g)(1) and 924(e)(1).

Indictment 1. Petitioner pleaded guilty. Plea Tr. 2-13.

A conviction for violating 18 U.S.C. 922(g)(1) carries

a default statutory sentencing range of zero to ten years

of imprisonment. See 18 U.S.C. 924(a)(2). If, however,

a defendant has at least three prior convictions for “a

violent felony or a serious drug offense,” the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e),

specifies a statutory sentencing range of 15 years to life

imprisonment. 18 U.S.C. 924(e)(1). The ACCA defines

“violent felony” to include, among other things, “any

3

crime punishable by imprisonment for a term exceeding

one year” that “is burglary.” 18 U.S.C. 924(e)(2)(B)(ii).

The Probation Office determined that petitioner had

four prior convictions for violent felonies, three of which

were for Missouri second-degree burglary. See PSR

¶¶ 33, 38, 39, 41. Over petitioner’s objection, the district

court agreed that all three Missouri convictions were violent felonies under the ACCA and sentenced petitioner

to 15 years of imprisonment. See Sent. Tr. 8, 13; Judgment 2.

The court of appeals affirmed. See Pet. App. 24a25a. Citing United States v. Bell, 445 F.3d 1086 (8th

Cir. 2006), the court explained that it previously had

“held that the offense described in [the Missouri] statute is ‘burglary’ within the meaning of ” the ACCA “so

long as the burglary is of a ‘building or structure,’ ” and

petitioner “admitted that the burglaries for which he

was convicted were of buildings.” Pet. App. 25a.

The district court denied petitioner’s subsequent

motion under 28 U.S.C. 2255 to vacate, set aside, or correct his sentence, which did not challenge the ACCA enhancement. See Pet. App. 26a-27a. Petitioner did not

appeal that ruling.

Two years later, petitioner sought leave from the

Eighth Circuit to file a second or successive Section

2255 motion, arguing that his Missouri burglary convictions were not violent felonies in light of Johnson v.

United States, 135 S. Ct. 2551 (2015), in which this

Court found the “residual clause” of the ACCA to be unconstitutionally vague, id. at 2557. See 16-3158 C.A.

Doc. 4428767-2 (8th Cir. July 21, 2016). The court of

appeals denied authorization for a second or successive

Section 2255 motion. See Pet. App. 28a.

4

2. Two years after the Eighth Circuit denied him

leave to file a second or successive Section 2255 motion,

petitioner filed an application for a writ of habeas corpus under 28 U.S.C. 2241 in the United States District

Court for the District of Kansas, which is the district

court of the district where he is in custody. See Pet.

App. 5a. Petitioner argued that his Missouri burglary

convictions were not convictions for violent felonies under the ACCA in light of this Court’s decision in Mathis

v. United States, 136 S. Ct. 2243 (2016), and the Eighth

Circuit’s decision in United States v. Naylor, 887 F.3d

397 (2018) (en banc). See 18-cv-3271 D. Ct. Doc. 2, at 2

(Oct. 22, 2018) (Application). Mathis stated that if a

state burglary statute “sets out a single (or ‘indivisible’)

set of elements to define a single crime” that is broader

than “generic burglary,” the offense it defines is not

“burglary” under the ACCA. 136 S. Ct. at 2248. In

Naylor, the Eighth Circuit relied on Mathis to conclude

that Missouri second-degree burglary is not “burglary”

under the ACCA and to overturn its previous holding in

Bell. Naylor, 887 F.3d at 400-407.

Petitioner argued that the district court had jurisdiction to entertain his habeas application under the socalled “saving clause” in 28 U.S.C. 2255(e). See Application 2. Ordinarily, a federal prisoner may seek postconviction relief only by motion under Section 2255; a

habeas application 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. Petitioner argued that Section 2255 was “inadequate or ineffective” in his case, observing that his statutory claim

5

under Mathis and Naylor was not the type of constitutional or factual-innocence claim for which a second or

successive claim may be authorized under 28 U.S.C.

2255(h). Application 5 (citation omitted). Petitioner

acknowledged that his argument was foreclosed by

Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.), cert. denied, 565 U.S. 1111 (2012) (No. 11-249),

which had rejected a similar attempt to rely on the saving clause as a mechanism for bringing a successive collateral attack that Section 2255(h) otherwise would not

allow. Id. at 584-588. He argued, however, that Prost

should be overturned. See Application 7.

The district court dismissed petitioner’s habeas application for lack of statutory jurisdiction before the

government had made an appearance in the case or filed

a response to the application. Pet. App. 5a-13a; see

Docket in No. 18-cv-3271 (D. Kan.). The court observed

that it was bound by Prost, which had considered and

rejected the same arguments petitioner now raised for

why he qualified for saving-clause relief. Pet. App. 10a

& n.1; see id. at 9a-12a. The court explained that under

Prost, “§ 2255 is not ‘inadequate or ineffective’ merely

because adverse circuit precedent existed at the time”

the prisoner filed his initial Section 2255 motion. Id. at

11a (citation omitted). As the court explained, even if

“binding Eighth Circuit precedent left ‘no legal basis’

for Petitioner to argue that his sentence should not have

been enhanced[,] * * * ‘nothing prevented [petitioner]

from raising the argument [that Missouri seconddegree burglary is not a violent felony under the ACCA]

in his initial § 2255 motion and then challenging any contrary precedent via en banc or certiorari review.’ ” Ibid.

(citations omitted).

6

3. The court of appeals affirmed, also without the

government’s participation in the case. Pet. App. 1a-4a;

see Docket in No. 18-3249 (10th Cir.). The court explained that it was bound by Prost “ ‘absent en banc reconsideration or a superseding contrary decision by the

Supreme Court,’ ” and that petitioner had “not identif [ied] any such intervening decision.” Pet. App. 4a (citation omitted).

ARGUMENT

Petitioner renews his contention (Pet. 17-25) that the

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

prisoner to challenge his conviction or sentence in an

application for a writ of habeas corpus under 28 U.S.C.

2241 based on an intervening decision of statutory interpretation, and identifies (Pet. 13-17) a circuit conflict

on that issue. Further review is unwarranted. This

Court recently denied a petition for a writ of certiorari

filed by the government seeking review of the same issue. 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. Furthermore, unlike in

Wheeler, the court of appeals’ decision here is correct.

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 seek habeas relief in another.

1. The court of appeals correctly determined that

petitioner cannot seek relief under Section 2241 for his

statutory claim.

The pending petition in Jones v. Underwood, No. 18-9495 (filed

May 21, 2019), also raises a similar issue.

*

7

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)(1) and (2); 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

rely on an intervening statutory decision to seek relief

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 such 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 suggests 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 F.3d

8

1076, cert. denied, 138 S. Ct. 502 (2017) (No. 17-85),

“ ‘[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.) (emphasis omitted), cert. denied, 565 U.S. 1111 (2012) (No. 11-249).

This case illustrates the point. 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 Missouri second-degree burglary offenses were

not violent felonies under the ACCA. Although the

Eighth Circuit had adverse panel precedent, that did

not foreclose petitioner from pressing the issue—just as

the defendant in United States v. Naylor, 887 F.3d 397

(8th Cir. 2018) (en banc), who was successful in overturning that precedent, did. 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). The arguments that the

Eighth Circuit accepted in Naylor were available well

before Mathis v. United States, 136 S. Ct. 2243 (2016),

which made clear that it was merely applying “longstanding principles” and reiterating “exactly th[e]

point” this Court “ha[d] already made” in earlier ACCA

cases. Id. at 2251, 2253. And even if Mathis had set

9

forth a new rule, nothing prevented petitioner from advocating for that rule in his direct appeal or in his initial

Section 2255 motion—as the defendant in Mathis itself

did.

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

10

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 585-586, 591; cf. Russello v. United States,

464 U.S. 16, 23 (1983) (presuming that Congress’s

choice of different language in nearby provisions of

same statute is deliberate). Petitioner’s reading of the

11

saving clause would allow such statutory claims precisely when—indeed, precisely because—Section 2255(h)

does not. That reading would render AEDPA’s restrictions on second or successive motions largely selfdefeating. 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”).

By contrast, the court of appeals’ 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 also

would 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) does not apply to an application for a writ of habeas corpus under the saving

12

clause. And a habeas application 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 perversely 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 error-correction.

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 post-conviction 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

13

rewrite the statute that Congress has enacted.” Dodd,

545 U.S. at 359. Ultimately, “[i]t is for Congress, not

this Court, to amend the statute” if the legislature believes that the narrowly drawn provisions found in Section 2255(h) “unduly restrict[] federal prisoners’ ability

to file second or successive motions.” Id. at 359-360. To

that end, the Department of Justice has supported efforts to introduce legislation that would enable some

prisoners to benefit from later-issued, 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 the “undue severity” of a prisoner’s sentence. U.S. Dep’t of

Justice, Justice Manual § 9-140.113 (Apr. 2018).

2. a. Petitioner correctly identifies (Pet. 13-17) a division of authority among the courts of appeals on the

issue here. The Tenth and Eleventh Circuits have correctly held that habeas relief under the saving clause is

unavailable based on a retroactive rule of statutory construction. See Pet. App. 3a-4a; McCarthan, 851 F.3d at

1086; see also Prost, 636 F.3d at 590-591. By contrast,

nine courts of appeals would permit such relief in some

circumstances. See Pet. 13 (listing cases); 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); see, e.g., Triestman v. United

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

14

least three of the nine circuits have extended that concept to encompass not just the conviction, but also 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). 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).

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, in March. The

division of authority that petitioner identifies on

whether the saving clause is ever available for statutory

claims precluded by Section 2255(h) is unchanged since

that time. Indeed, the court of appeals panel here

simply followed its previous holding in Prost, as it was

bound to do “absent en banc reconsideration or a superseding contrary decision by [this] Court.” Pet. App. 4a

(citation omitted). The circuit conflict therefore does

not warrant this Court’s review any more than it did six

months ago.

Petitioner errs in asserting (Pet. 28-30) that vehicle

problems in Wheeler rendered review in that case inappropriate. Petitioner contends (Pet. 28-29) that Wheeler

presented potential mootness concerns because of the

possibility that the defendant there would serve his entire sentence before this Court could complete its review. But in fact the district court in Wheeler ordered

15

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 General, to Scott S. Harris, Clerk at 1, Wheeler, supra (Feb.

28, 2019); see also Letter from Joshua B. Carpenter to

Scott S. Harris, Clerk at 1, Wheeler, supra (Mar. 1,

2019) (respondents’ letter acknowledging that “concerns of potential mootness” would “no longer be present”).

Petitioner also argues (Pet. 29) that Wheeler presented “significant threshold issues” of waiver and jurisdiction that are not present here. That argument is

misplaced. As the Wheeler petition explained, the case

presented no waiver concerns because “neither the

court of appeals nor this Court would [have been] required to treat the government’s position in the district

court,” in which it viewed saving-clause relief to be

available, “as dispositive,” given the government’s appellate defense of the district court’s dismissal order.

Gov’t Pet. at 26-27, Wheeler, supra (citing Koons v.

United States, 138 S. Ct. 1783 (2018)). The Wheeler petition also explained that the disposition of the case did

not depend on whether Section 2255(e) imposes a limitation on the subject matter jurisdiction of federal

courts, and that even if it did, the Court could productively resolve that issue as well. See Gov’t Cert. Reply

Br. at 7, Wheeler, supra. Petitioner therefore fails to

identify a sound reason for granting certiorari in this

case notwithstanding the Court’s recent denial of the

petition for a writ of certiorari in Wheeler.

b. This case, moreover, presents complications that

Wheeler did not. There, the Fourth Circuit allowed relief under the saving clause based on its own updated

16

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

Tenth Circuit decision establishing that his detention is

unlawful, and in United States v. Phelps, 17 F.3d 1334,

cert. denied, 513 U.S. 844 (1994), the Tenth Circuit determined that Missouri second-degree burglary is a violent felony under the ACCA. Id. at 1341-1342. Petitioner principally relies on the decision of the Eighth

Circuit in Naylor, supra. But nothing requires the

Tenth Circuit to agree with that decision rather than

adhere to its own decision in Phelps. 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”), 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. That is an underdeveloped issue in the

courts of appeals that could complicate this Court’s review of the question presented here. 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.

17

Marske, No. 18-3268, 2019 WL 4254295, at *7 (7th Cir.

Sept. 9, 2019) (reserving the question but applying the

law of the circuit of confinement because the government agreed to it); cf. In re Davenport, 147 F.3d 605,

612 (7th Cir. 1998) (explaining that saving-clause relief

is unavailable if there is “a difference between the law

in the circuit in which the prisoner was sentenced and

the law in the circuit in which he is incarcerated”).

Second, petitioner’s entitlement to relief depends on

a view of the saving clause expansive enough to encompass the right to ask the Tenth Circuit to reconsider its

prior decision in Phelps. No circuit has indicated that it

would authorize saving-clause relief under such circumstances. The Seventh Circuit has explained that even

the existence of “a circuit split” precludes saving-clause

relief 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.”

Davenport, 147 F.3d at 612. And to the government’s

knowledge, only the Fourth Circuit has even allowed a

prisoner to rely on the saving clause when the statutory

issue is merely unresolved (with no adverse precedent

of the sort at issue here) in the circuit of incarceration—

and in that case, the government did not oppose relief

on that ground. See Hahn, 931 F.3d at 301.

Moreover, even were the saving clause broad enough

to allow petitioner to seek such merits review in the first

instance, it is far from clear that the Tenth Circuit

would adopt Naylor rather than adhere to the result in

Phelps. At the time of petitioner’s convictions, Missouri

defined second-degree burglary as “knowingly enter[ing] unlawfully or knowingly remain[ing] unlawfully in

a building or inhabitable structure for the purpose of

committing a crime therein.” Mo. Rev. Stat. § 569.170

18

(West 1979). Although Naylor concluded that “building

or inhabitable structure” in Section 569.170 is indivisible

—and thus defines a crime broader than generic burglary, see 887 F.3d at 401-407—the Eighth Circuit did

not have the benefit of this Court’s decision in United

States v. Stitt, 139 S. Ct. 399 (2018), which makes clear

that generic burglary encompasses a substantial range

of inhabitable structures that are not traditional “buildings,” id. at 407. And as the dissenters in Naylor observed, Missouri case law and charging practice can be

read to support a determination that “building” and “inhabitable structure” in fact are elements, not means,

and are therefore divisible. See Naylor, 887 F.3d at 411

(Shepherd, J., dissenting). Consideration of those and

other factors may well lead the Tenth Circuit to find

that Missouri second-degree burglary is divisible and

that at least some versions of the offense are no broader

than generic burglary, consistent with its prior decision

in Phelps. In that event, petitioner—all of whose burglary convictions involved buildings—could not secure

relief.

c. Finally, it bears mention that none of the issues

here were briefed below; petitioner never served the

government with his habeas application, and the government therefore never filed even an appearance,

much less a brief, in either the district court or the court

of appeals. Although that need not, standing alone, impede this Court’s review, it does undercut petitioner’s

suggestion that this case is an “ideal” vehicle to answer

the question presented. Pet. 30.

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

JOHN M. PELLETTIERI

Attorney

SEPTEMBER 2019