Reply Brief — Michael Jackson, Petitioner v. Don Hudson, Warden

Supreme Court briefMay 24, 2021

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No. 20-911

IN THE

MICHAEL JACKSON,

Petitioner,

DON HUDSON, WARDEN,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

REPLY BRIEF OF PETITIONER

Kevin K. Russell

Counsel of Record

Molly Runkle

Erica Oleszczuk Evans

GOLDSTEIN & RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

kr@goldsteinrussell.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

REPLY BRIEF OF PETITIONER .............................. 1

Petitioner Would Qualify For Savings

Clause Relief In Multiple Circuits ........................ 3

II. The Government’s Other Vehicle Objections

Are No Impediment To Review ............................. 6

A. Petitioner’s Claim Is Not Procedurally

Defaulted ........................................................ 7

B. Petitioner Could Show Prejudice ................... 7

C. Habeas Would Provide Petitioner

Meaningful Relief ......................................... 11

CONCLUSION .......................................................... 12

TABLE OF AUTHORITIES

Cases

Alaimalo v. United States,

645 F.3d 1042 (9th Cir. 2011) .................................. 5

Arizona v. Fulminate,

499 U.S. 279 (1991) .................................................. 9

Bousley v. United States,

523 U.S. 614 (1998) .................................................. 7

Brecht v. Abrahamson,

507 U.S. 619 (1993) .............................................. 8, 9

Dretke v. Haley,

541 U.S. 386 (2004) .................................................. 7

Edwards v. Carpenter,

529 U.S. 446 (2000) .................................................. 6

Garland v. Roy,

615 F.3d 391 (5th Cir. 2010) .................................... 3

Hahn v. Moseley,

931 F.3d 295 (4th Cir. 2019) .................................... 4

Hammoud v. Ma’at,

830 Fed. Appx. 438 (5th Cir. 2020).......................... 5

Kotteakos v. United States,

328 U.S. 750 (1946) .................................................. 8

Maples v. Thomas,

565 U.S. 266 (2012) .................................................. 6

Martinez v. Ryan,

566 U.S. 1 (2012) ...................................................... 6

Mathis v. United States,

136 S. Ct. 2243 (2016) ............................................ 11

Reed v. Ross,

468 U.S. 1 (1984) ...................................................... 7

iii

Rehaif v. United States,

139 S. Ct. 2191 (2019) .................................... passim

Santillana v. Upton,

846 F.3d 779 (5th Cir. 2017) ................................ 4, 5

Schlup v. Delo,

513 U.S. 298 (1995) .................................................. 4

Trevino v. Thaler,

569 U.S. 413 (2013) .................................................. 6

Triestman v. United States,

124 F.3d 361 (2d Cir. 1997) ..................................... 6

United States v. Arthurs,

823 Fed. Appx. 692 (10th Cir. 2020).................... 8, 9

United States v. Cooper,

2021 WL 328685 (D. Nev. Feb. 1, 2021) .................. 7

United States v. Frady,

456 U.S. 152 (1982) .............................................. 8, 9

United States v. Green,

973 F.3d 208 (4th Cir. 2020) .................................. 10

United States v. Medley,

972 F.3d 399 (4th Cir. 2020) .................................. 10

United States v. Naylor,

887 F.3d 397 (8th Cir. 2018) .................................. 11

Statutes

18 U.S.C. § 924(a)(2) .................................................. 11

18 U.S.C. § 924(e)(2)(B)(ii) ........................................ 11

Rules

Fed. R. Civ. P. 52(b) ..................................................... 9

REPLY BRIEF OF PETITIONER

The Government acknowledges the circuit conflict

and its importance. BIO 8. It does not claim that the

conflict will resolve itself or that its persistence is

tolerable. Yet, the Government opposes certiorari for

two unconvincing reasons. First, it claims that this

case does not implicate the conflict because petitioner

would not be entitled to savings clause relief in any

circuit. That is demonstrably incorrect. Second, the

Government argues that this case is a poor vehicle

because petitioner would lose his habeas claim on the

merits.

That argument is unfounded as well,

depending on legal claims that are themselves the

subject of divisions in the lower courts. In any event,

the Government’s arguments on the merits of

petitioner’s habeas petition are no impediment to

deciding the threshold question of whether petitioner

is even entitled to an adjudication of his claims. The

Court can decide that threshold question and then, if

necessary, remand for consideration of any harmless

error argument, something it frequently does in cases

like this. Pet. 22.

The Government’s own amici explain why the

Court should resist the United States’ apparent

strategy of delaying resolution of the conflict

indefinitely by finding fault in every petition providing

a chance to resolve it. In amici’s view, the majority of

circuits are applying the wrong legal rule,

“eroding . . . the habeas system” and “impos[ing] real

and increasing social costs on victims and the

judiciary.” Amicus Br. 22. Petitioner obviously

disagrees about which side of the conflict is correct and

who, as a consequence, is bearing the cost. Pet. 16-18.

But there is no denying that whatever the answer to

the question presented, the continuation of the conflict

only multiplies unfairness and undermines the

integrity of our criminal justice system.

Amici also argue that there is a renewed urgency

for this Court’s intervention arising from the prospect

that the Government is about to change its position –

yet again – on the merits of the question presented.

Amicus Br. 2 (“When the government aligns with the

convicted in the lower courts, the opportunities for this

Court to resolve this circuit split dramatically narrow

or disappear.”). And, in fact, the new Administration

has conspicuously failed to defend the Tenth Circuit’s

rule, despite having vigorously defended it in past

oppositions. Compare BIO 7-10, with, e.g., U.S. BIO

10-17, Hueso v. Barnhart, No. 19-1365 (Sept. 11,

2020).

Absent this Court’s immediate intervention, then,

the inconsistency and unfairness respected jurists

have been decrying for years will only get worse. Pet.

17-18. Opportunities to correct illegal convictions will

be doled out based on the happenstance of the Bureau

of Prisons’ housing decisions. And given the prospect

that the Government will now change its position, the

availability of relief in some circuits may depend on

individual judges’ willingness to accept the

Government’s acquiescence to savings clause petitions

when existing circuit precedent would not allow them.

Enough is enough. The circuit split is squarely

presented on the facts of this case. None of the

Government’s vehicle objections suggest that the

Court would fail to reach the merits of the question

presented or be unable to resolve the conflict. The

Court should not let another term slip away without

ending this intolerable disarray in the law.

Petitioner Would Qualify For

Clause Relief In Multiple Circuits.

Savings

The Government argues that “petitioner would

not be entitled to relief even in the circuits that have

adopted the most prisoner-favorable view of the saving

clause,” because those circuits require a petitioner to

show “he is in prison for conduct that the law does not

make criminal.” BIO 9. In this case, the Government

claims petitioner cannot make that showing because

he merely complains of “[t]he absence of a jury

instruction” on the mens rea element established in

Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019).

BIO 9. Not so.

To start, petitioner does not raise some run-of-themill objection to a jury charge about witness credibility

or what counts as relevant evidence. He claims (and

the Government does not dispute) that the jury

instructions omitted an essential element of the

offense, as did the indictment (a distinct violation the

Government ignores). Pet. 5-6, 22-23. Petitioner

further alleges that based on the flawed jury

instructions and the Government’s undisputed failure

to introduce any evidence to prove the element, the

facts found by the jury – that petitioner possessed a

firearm after having been previously convicted of a

felony – do not constitute a crime under Rehaif’s

explication of the offense. In other words, he was

convicted of a non-existent offense. See, e.g., Garland

v. Roy, 615 F.3d 391, 393 (5th Cir. 2010).

To the extent the Government suggests that

circuits would require petitioner to prove he is

“actually innocent” in the sense that he would not be

convicted if tried again on the basis of other evidence

never presented to the jury, its own amici point out

that there is a circuit split on that question. See

Amicus Br. 20. In fact, petitioner would have been

entitled to pursue his habeas claim in at least the

Fourth and Fifth Circuits, and perhaps others as well.

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

the Government argued that to qualify under the

savings clause, a defendant “must demonstrate actual

innocence,” invoking the standard for overcoming

procedural default under Schlup v. Delo, 513 U.S. 298

(1995). Hahn, 931 F.3d at 302. Under Schlup, a court

may look at all available evidence, even information

never submitted to the jury. See id. at 304 (Wynn, J.,

concurring) (explaining standard); see also Schlup, 513

U.S. at 328. But the Hahn court held that “the Fourth

Circuit does not require actual innocence analysis

under the savings clause.” 931 F.3d at 302. Instead,

the Fourth Circuit standard asks whether “the

conduct of which the prisoner was convicted is deemed

not to be criminal” under current law. Id. at 301

(citation omitted, emphasis added); see also id. at 30407 (Wynn, J., concurring) (explaining that the “plain

meaning of the phrase ‘the conduct of which the

prisoner was convicted’ refers to the conduct that a

jury found beyond a reasonable doubt”) (citation

omitted). In applying the savings clause, then, the

Fourth Circuit does not “interrogat[e] the factual

issues of whether the underlying criminal activity

occurred.” Id. at 302-03 (majority opinion).

Then there is the Fifth Circuit’s decision in

Santillana v. Upton, 846 F.3d 779 (5th Cir. 2017),

which the petition discussed in some detail yet the

Government inexplicably ignores. See Pet. 20-21. As

in this case, an intervening decision of this Court made

clear that the indictment and jury charge failed to

include an essential element of the offense. 846 F.3d

at 781, 785. The Government nonetheless argued that

the savings clause was unavailable because “the

record contains evidence that could support a finding”

of the missing element. Id. at 784. But the Fifth

Circuit held that “when determining whether a

petitioner can show that he may have been convicted

of a nonexistent offense, we must look to what the

factfinder actually decided.” Ibid. And to do that, the

Fifth Circuit looks exclusively at the “indictment and

jury instructions,” disregarding even the evidence

presented at trial. Ibid. (refusing Government’s

invitation to look at evidence in trial record); id. at 785

(looking only at indictment and jury instructions);

ibid. (“Based on the indictment and instruction, we

cannot say that the jury found” the missing element).1

Accordingly, the Government cannot simply cite

to a circuit’s requirement of a conviction for a

“nonexistent offense” and assume from that the circuit

would reject a savings clause petition in this case. BIO

9. Indeed, the opposition fails to cite even a single

decision from any circuit rejecting a savings clause

claim on the basis of evidence that was never

presented to the jury. See ibid. (citing Alaimalo v.

United States, 645 F.3d 1042, 1047-48 (9th Cir. 2011)

In Hammoud v. Ma’at, 830 Fed. Appx. 438 (5th Cir. 2020)

(per curiam), a panel of the Fifth Circuit refused to extend

savings-clause relief to cases in which an intervening statutory

amendment, claimed to be “clarifying,” allegedly rendered the

defendant convicted of a non-existent offense. As Amici note, the

Fifth Circuit recently granted rehearing en banc in that case to

consider its precedent in this area. Amicus Br. 5. But there is no

indication it will reconsider its views on the scope of the relevant

evidence.

(not addressing issue) and Triestman v. United States,

124 F.3d 361, 365 n.2, 379 (2d Cir. 1997) (same,

explaining savings clause does not require

determination “whether [the petitioner] is actually

innocent”)).

II. The Government’s Other Vehicle Objections

Are No Impediment To Review.

The Government’s only other objection is that

petitioner will lose his habeas case on the merits. BIO

10. That is no basis to deny certiorari either.

The Government does not argue that its merits

arguments would prevent the Court from reaching the

question presented. And as the petition explained,

this Court regularly grants certiorari to resolve circuit

conflicts regarding similar threshold issues despite

the Government’s objection that the petitioner might

ultimately lose on other grounds. Pet. 22. That is

what happened in Rehaif itself. See Rehaif BIO 12-13

(arguing case poor vehicle because defendant had “no

‘viable defense’ that he lacked the [required] mens

rea”); Rehaif, 139 S. Ct. at 2220 (resolving question

presented and remanding for harmless error analysis).

And it is particularly common in cases like this,

addressing the prerequisites for considering collateral

attacks on criminal sentences. See, e.g., Trevino v.

Thaler, 569 U.S. 413, 429 (2013); Martinez v. Ryan,

566 U.S. 1, 17-18 (2012); Maples v. Thomas, 565 U.S.

266, 290 (2012); Edwards v. Carpenter, 529 U.S. 446,

453-54 (2000).

The Government provides no reason for a different

approach here.

But its merits arguments are

unpersuasive in any event.

A. Petitioner’s Claim Is Not Procedurally

Defaulted.

The United States asserts that any habeas

petition would be procedurally defaulted absent “a

stringent showing of actual innocence.” BIO 10 (citing

Bousley v. United States, 523 U.S. 614, 623-24 (1998)).

But that argument mischaracterizes procedural

default doctrine, which requires petitioner to show

either actual innocence or cause and prejudice. See,

e.g., Dretke v. Haley, 541 U.S. 386, 388 (2004).

In this case, petitioner could show cause and

prejudice. Cause exists when this Court “overtur[ns]

a longstanding and widespread practice to which this

Court has not spoken, but which a near-unanimous

body of lower court authority has expressly approved.”

Reed v. Ross, 468 U.S. 1, 17 (1984) (citation omitted).

Rehaif fits that description perfectly. See Rehaif, 139

S. Ct. at 2201 (Alito, J., dissenting) (noting decision

“overturn[ed] the long-established interpretation of an

important criminal statute ..., an interpretation that

ha[d] been adopted by every single Court of Appeals to

address the question” and was “used in thousands of

cases for more than 30 years”); United States v.

Cooper, 2021 WL 328685, at *2 (D. Nev. Feb. 1, 2021)

(finding cause for failure to raise Rehaif claim at trial

under Reed), appeal pending, No. 21-15330 (9th Cir.

docketed Feb. 24, 2021). And, as discussed next,

petitioner could show prejudice as well.

B. Petitioner Could Show Prejudice.

The Government says that petitioner cannot show

prejudice, and that any Rehaif error is harmless,

because his presentence investigation report (PSR)

supposedly makes clear petitioner knew his felon

status. BIO 10 (citing Brecht v. Abrahamson, 507 U.S.

619, 637 (1993)). That argument fails for three

reasons.

First, the Government assumes that harmless

error applies to petitioner’s challenge to his

indictment. But as the petition explained, that is an

open question in this Court. Pet. 22-23; BIO 9-10

(ignoring the issue).

Second, even when the Brecht harmless error

standard applies, it asks whether the error had a

“substantial and injurious effect or influence in

determining the jury’s verdict.” 507 U.S. at 637

(quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946) (emphasis added)). Here, petitioner could

easily show that if the jury had been properly

instructed, it would have been compelled to acquit him

because the Government presented no evidence to

satisfy the Rehaif mens rea element. See Pet. 5; BIO

3, 9-10 (not claiming otherwise).

The Government’s only response is to point to the

information in the PSR, which it never presented to

the jury. BIO 10. But Brecht asks how the error

affected the actual jury verdict, which is based on the

evidence the Government actually presented at trial.

See, e.g., United States v. Frady, 456 U.S. 152, 169

(1982) (prejudice evaluated in the “context of the

events at trial”). Recognizing this, the Tenth Circuit

recently cast serious doubt on the Government’s

attempt to argue in another case that a Rehaif error

was harmless because a PSR showed the defendant

“must have known of his prohibited status.” United

States v. Arthurs, 823 Fed. Appx. 692, 696 n.7 (10th

Cir. 2020). The court explained:

We do not rely on this extra-trial evidence,

though, because the error in this case is a trial

error—i.e., an “error which occurred during

the presentation of the case to the jury, and

which may therefore be quantitatively

assessed in the context of other evidence

presented in order to determine whether its

admission was harmless[.]”

Ibid. (quoting Arizona v. Fulminate, 499 U.S. 279, 30708 (1991)) (emphasis altered). Because the Tenth

Circuit was able to resolve the harmless error question

based on the evidence presented to the jury, the court

was not required “to resolve whether Brecht-harmlesserror review lends itself to extra-trial evidence in this

context” but noted that “a future panel may need to

resolve whether courts in similar circumstances can

look beyond the trial record.” Ibid.

Because the Government’s vehicle objection

depends on the answer to a question unresolved by the

circuit below, it cannot show that petitioner’s habeas

claim is so obviously dead in the water that it would

be pointless to use this case to settle a completely

distinct and obviously certworthy question.2

The Court’s impending decision in Greer v. United States,

No. 19-8709, may inform the question noted in Arthurs, but will

not resolve it. The question in Greer is whether the Government

may rely on a PSR to defeat a claim of plain error under Fed. R.

Civ. P. 52(b). Greer Petr. Br. i, 35. But this Court has held that

plain error does not apply in the habeas context; errors not raised

at trial are instead evaluated under the distinct cause and

prejudice test. See Brecht, 507 U.S. at 634 (citing Frady, 456 U.S.

at 162-69). If necessary, this Court could use this case as a followon to Greer to decide whether its holding in that case extends to

the cause-and-prejudice context.

Third, even if the court could consider the PSR

evidence, that would not establish harmless error, as

the Fourth Circuit recently held in United States v.

Green, 973 F.3d 208 (4th Cir. 2020), petition for cert.

pending, No. 20-1295 (filed Mar. 17, 2021).

In that case, as here, the Government argued that

a Rehaif error was harmless because the defendant’s

PSR showed he had served “nearly a decade in prison”

for prior felony convictions. 973 F.3d at 211. The

Fourth Circuit accepted that it could rely on the PSR,

but nonetheless held that the indictment’s failure to

allege the defendant’s knowledge of his status

“prejudiced [the defendant] because it failed to provide

sufficient notice of the accusations against him.” Ibid.

In addition, the “failure to instruct the jury on the

prohibit status element, and the government’s failure

to present sufficient evidence on this point at trial,

prejudiced” the defendant as well. Ibid. The court

then found that the combination of errors “were

sufficient to undermine the confidence in the outcomes

of the proceedings,” and therefore ordered a new trial.

See ibid.3

The Government surely disagrees with that

analysis, but again, it cannot claim that petitioner’s

habeas petition is so clearly foreclosed that this is a

poor vehicle for deciding whether he should even have

a chance to litigate it.

Green relied on United States v. Medley, 972 F.3d 399 (4th

Cir. 2020), which is now being reheard en banc, see 828 Fed.

Appx. 923 (4th Cir. 2020).

C. Habeas Would Provide

Meaningful Relief.

Petitioner

Finally, to the extent the Government suggests

this is a poor vehicle because habeas relief would do

petitioner no good – because he would eventually be

convicted again given the information in the PSR –

that is incorrect as well. At the very least, even if

reconvicted, petitioner would be sentenced under this

Court’s current interpretation of the Armed Career

Criminal Act of 1984 (ACCA), reducing his sentence by

nearly two-thirds and relieving him from what is now,

as a practical matter, a life sentence.4

Of course, this Court does not grant certiorari to

correct such case-specific injustices – it takes cases to

resolve circuit conflicts. It should therefore make little

difference whether the Government or petitioner is

right about the practical consequences of a favorable

decision on the question presented for this one

particular litigant.

At bottom, none of the

Government’s vehicle objections pose an impediment

to using this case to resolve the long-standing,

Petitioner’s 327-month sentence was premised on thenexisting Eighth Circuit precedent holding that petitioner’s prior

second-degree burglary convictions constituted “violent felonies”

under 18 U.S.C. § 924(e)(2)(B)(ii). See PSR ¶ 31; Order at 1-2,

United States v. Jackson, No. 4:02-cr-00094-SRB-1 (W.D. Mo.

Aug. 31, 2016), Doc. 185. After Mathis v. United States, 136 S. Ct.

2243 (2016), the Eighth Circuit overturned that precedent and

now acknowledges that Missouri’s second-degree burglary does

not constitute an ACCA predicate offense. See United States v.

Naylor, 887 F.3d 397, 407 (8th Cir. 2018) (en banc). Absent the

ACCA enhancement, petitioner’s maximum sentence would have

been 120 months. 18 U.S.C. § 924(a)(2).

untenable conflict now-Justice Barrett and her former

circuit court colleagues have decried. Pet. 17-18. The

petition should be granted.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,