Reply Brief — Jason L. Clark, Petitioner v. United States

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No. 19-5995

IN THE SUPREME COURT OF THE UNITED STATES

JASON L. CLARK, PETITIONER

V.

\UNITED STATES OF AMERICA

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ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

■ NOEL ;J. FRANCISCO

SOLICITOR GENERAL

Counsel of Record

Pro.jse Litigant

BRIAN A. BENCZKOWSKI

Assistant Attorney General

Jason Clark

Reg. No. 17832-045

Forrest City Correctional

Complex/Medium

JOHN M. PELLETTIERI

Attorney

Forrest City Arkansas

P.0. Box 3000

72336

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoi .gov.'

(202) 514-221/

Receive D

MAR 1 0 2020

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INTRODUCTION

Because the Government raised a new point asserting that This case

would be an unsuitable vehicle for addressing the question presented

the Petitioner has opted to ’'Reply."

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TABLE OF CONTENTS

Table of Contents

I

Table of Authorities

II

Under The Menna Blackledge Doctrine this case is a suitable vehicle

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for addressing the question presented

1.

Prayer

6.

Certificate of Service

7.

Declaration

7.

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STATEMENT OF AUTHORITIES

Glass V. United States, 200 LE.D. 2d (2018)

Pages

1, 5.

1.

Descamp v. United States, 133 S.Ct. 2276 (2013)

2.

Haring v. Prosise, 462 U.S. 306, 321 (1983)

2, 3.

Haynes v. United States, 390, U.S. 85, 87 (1968)

1, 5.

Mathis v. United States, 136 S.Ct. 2243

2.

McCarthy v. United States, 394 U.S. 459-466 (1969)

3.

Blackledge v. Perry, 417 U.S. 21 (1974)

1, 4, 5,6.

Menna v. Nev? York A 423 U.S. 21

Mitchell v. United States, 394 U.S. 459, 466 (1999)

3.

Moncrieffe v. Holder, 569 U.S. 84

2.

Sessions v. Dimaya, No. 15-1498

3.

Tollett y. Henderson, 411 U.S. 258-266-267 (1973)

4, 5.

United States Broce, 488 U.S. 563

1, *•

United States v. Ruiz, 536 U.S. 314, 324 (2000)

3.

United States v. Ury, 106 F.2d 28

1.

STATUTES

21 U.S.C. 851

18 U.S.C. 924(e)

18 U.S.C. 922(g)

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UNDER THE MENNA BLACKLEDGE DOCTRINE THIS CASE IS

A SUITABLE VEHICLE FOR ADDRESSING THE

QUESTION PRESENTED

Because the Petitioner was subject to the statutory provisions of

21 U.S.C. 851(e) and the provisions of 18 U.S.C. 924(e), his case is a

suitable vehicle for addressing the "question presented to the High

Court. Contrary to the Government's rendition on case related defects

the constitutional claim at issue here are consistent with the Petitio

ner1s .admission.that he engaged in the conduct alledged in the indictment,

The Petitioner's challenge does not in anyway deny that he en­

gaged in the conduct to which he admitted, instead, he seeks to raise

a claim . iih ich judged on it's face based upon the existing record, wo­

uld extinguish the Government's power to 'constitutionally prosecute .

the Petitioner if the claims are successful. See Menna v. New York, 423 U.S. 21 (1974)y Citing Blackledge v. Perry, 417 U.S. 21 (1974)y al­

so see Haynes v. United States, 390 U.S. 85, 87 n. 2 (1968) ("a defen­

dant's plea of guilty did not... waive his previous constitutional cl­

aim.") (Justice Harlan' s . opinion) ^1 also see United States v. Ury, 106

F.2d 28, Treas. Dec. 49950 (CA2 1939) (holding^! the. p]ea of guilty did

not foreclose the appellant, who argued that a statute was unconstitu­

tional, "from the review he now seeks."); also see United States v. Be

roce, 488 U.S. 563 (1989)^1 and Class v. United States, 200 L.Ed 2d 37

(2018) ("But the cases to which we have referred make clear that a de­

fendant's guilty plea does not make irrelevant the kind of claim Class

seeks to make.")

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The Petitioner claims in the instant case is that "Congress framed

a law that judicially has no pertinent guidelines, delegating authority

to administrators, prosecutors, juries and judges to make ad hoc deci­

sions implicates "Union" of the judicial and legislative powers."

21

U.S.C. 851(e), is a!lso implicated as a miscarriage of justice that "

conflicts with reddress (customarily afforded) in violation og due process."

See Petitioner's brief page 10-11. (Pet. brief) ("with the ex­

ception of the limits set in 851(e), allprior predicates are subject to

the categorical or modified categorical approach,

with regards to sta-

tutory enhancements and a determination is reached as to whether the

statutory enhance-ment is lawful or unlawful based on advanced princi­

ples uniformally established by trial and error in the Courts." quoting

Descamp v. United States, 133 S.Ct. 2276 (2013); and :;Mathis v. United

States^ 136 S.Ct. 2243 (2016)^1

84)

also see Moncrieffe v. Holder, 569 U.S.

851(e). conflicts with very principle that; "a prisoner may move

the court that imposed a sentence in violation of the Constitution or

laws of the United States for relief.

It is not solely a matter of ra­

ther whether "a sentence,carries a penalty in excess of the statutory

maximum, that makes

Petitioner's claim an .exception to a waiver of his

rights, such is not marginal to the constitutional validity of the conviction. Haring v. Prosise 462 U.S. 306,321 (1983).

The same is true

with the Petitioner's 18 U.S.C. 924(e) claim;asserting that the statute

of conviction is unconstitutionally vague,

Though contention is avai-

lable that the Petitioner's sentence is in excess of the statutory maxi

mum as it pertains.to 18 U.S.C. 922(g), the Petitioner went on to as2.

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sert that; "Congress left room for 18 U.S.C. 924(e) to be circumvented

and suject to the preference of the judiciary, instead of placing em­

phasis on it's meaning. See Pet. Brief, pg. 12.

The argument vi/as based

on the fact that the statute fails to inform individuals that it would

be state legisture that defines "a maximum sentence of ten years or

more."

The statute invited arbitrary power... leaving people in the d-

ark about what the law demands and allowing prosecutors and the Courts

to make it up.

See Sessions v. Dimaya, No. 15-1498. Actually read on

it's face the statute indicates that the drug offenses are "as defined

under the federal Controlled Substance Act."

There is no back drop to

concerns that are case related, the claim pertains to the statute of

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conviction being unconstitutional, clearly outside the reach of--.-the

Government's waiver.

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However, a valid guilty plea "forgoes not only a fair trial, but

also other accompanying--constitutional guarantees." Ruiz

536 U.S. at

628-629 (United States v. Ruiz, 536 U.S. 622, 629 (2000)).

While those

"simutaneously" relinquished right include the privilege against com­

pulsory self-incrimination, the jury trial right, and the right to con­

front accusers, McCarthy v. United States, 394 U.S. 459, 466 (1969),

they do not include "a waiver of the privilege which exist beyond the

confines of the trial." Mitchell v. United States, 526 U.S. 314, 324

(1999).

A valid guilty plea also renders irrelevant-and thereby pre­

vents the defendant from appealing-the constitutionality of case-rela­

ted government conduct that takes place before the plea is entered. See

e.g. Haring, supra at 320. (holding a valid guilty plea "results in the

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defendant loss of any meaningful opportunity he might otherwise have

had to challenge the admissibility of evidence obtained in violation

of the Fourth Amendment.")

Neither can a defendant later complain

that the indicting grand jury was unconstitutionally selected. ToIt

let t-v. Henderson, 411 U.S. 258, 266-267 (1973)).

Furthermore, a va­

lid guilty plea relinquishes any claim that would contradict the ad­

missions necessarily made upon a voluntary plea of guilty." Broce, su­

pra, at 573-574.

So contrary to the Government's assertion that "Nothing in this

Court's decision in Class, calls into question a defendant's ability

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to expressly waive his right to collateral attack his sentence, inclu­

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ding on the basis of constitutional claims, where the waiver is kno­

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wingly and voluntarily made." See Brief in opposition Page 12.

Brief.)

(Opp.

Class, explained the significance of the Menna Blackledge,

doctrine, stating that!;' "where North Carolina indicted and convicted

Jimmy Seth Perry, on a misdemeanor assault charge,

When Perry exer-

cised his right under a North Carolina statute to a de novo trial in

a higher court, the state reindicted him, but this time the state char­

ged a felony, which carried a heavier penalty, for the same conduct.

Perry pleaded guilty.

He then sought habeas relief on the grounds

that the reindictment amounted to an unconstitutional vindictive prosecution.

The State argued that Perry's guilty plea barred him from

But this Court held that it did

raising his constitutional challenge.

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The Court noted that a guilty plea bars appeals of many claims,

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including some "antecedent constitutional violations" id. at 30. (quo­

ting Tollett v. Henderson, 411 U.S. 258, 266-267 (1973)). While Tollett

claims were "of constitutional dimension," the Court explained that

"the nature of the underlying constitutional infirmity is markedly dif­

ferent from a claim of vindictive prosecution, which implicates "the

very power of the state to prosecute the defendant."

U.S. at 30.

Blackledge, 417

Also see Menna v. New york, 423 U.S. 61 (1975) ("A plea of

guilty to a charge does not waive a claim that-judged on it's face-the

charge is one which the state may not constitutionally prosecute.")

Menna's claim amounted to a claim that "the state may not convict" him

"no matter how validly his factual guilt is established." Ibid,

Menna '.s

guilty plea, there [did] not bar the claim." Ibid. See Haynes v. United

States, 390 U.S. 85, 87 n. 2 (1968) ("A defendant's plea of guilty did

not. .. waive his previous [constitutional] claim.")

Notable is that the Government's argument, the District Court's

findings and that of the Appellate Court of Appeals, all conflict with

the Menna Blackledge, doctrine.

What the Government seeks to offer

with it's view on the waiver issue is arbitrary and capricious,

Fore-

closing a challenge to law that is illegal or may very well be found to

be, goes hand-in-hand with "Reaching back 30 years for a prior offense

to heighten penalties, then in the next breath, foreclosing challenge

opposing use of the offense because it is 5 years old." See 21 U.S.C.

851(e).

And it certainly is in rythm with the slight of hand or va-

riation that that encapsulates 18 U.S.C 924(e)(ii).

5.

Pinning Congres-

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sional legislature on it's face (a faint) then hammering defendant's

based on legislature-that1s contrary to the Controlled substance Act,

state legislature that supplements what Congress defined generically.

Where as a 1987 conviction for "sales of .40 grams of crack cocaine

under state legislature may involve a term of imprisonment of ten years

or more but under the QSA

the threshold amount of 28 grams or more is

consistent with the Drug Quantity Table and the Equivalency Table when

defining a serious drug trafficking offense,

Even had the threshold

amount remained at 5 grams, in most cases already tried on the subject

the state offense would not categorically match what Congress implemen­

ted by terms set in the CSA.

Certainly Petitioner's legal circumstances

are suitable as a vehicle for addressing the question presented to this

Honorable Court, particularly, where the government offered not one pa­

ragraph disavowing the relevance of the Menna Blackledge, doctrine, whi­

ch supports a favorable finding on behalf of the Petitioner and if ne­

cessary "Oral Arguments," and "Appointment of Counsel or wha.t ever the

court deems fair and just.

Wherefore, the Petitioner duly Prays,

that the High Court grants the opportunity to be heard on the claims

that the statutes of conviction are "Arbitrary," "Capricious,"

and

"Vague law."

Respectfully submitted.

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