Petition for Writ of Certiorari — Tye Lanford Sarratt, Petitioner v. United States

NO. _____________

In The

Supreme Court of the United States

-------------------------Ƈ-------------------------

TYE LANFORD SARRATT,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

-------------------------Ƈ------------------------ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

-------------------------Ƈ-------------------------

PETITION FOR WRIT OF CERTIORARI

-------------------------Ƈ------------------------Anthony Martinez

FEDERAL PUBLIC DEFENDER FOR THE

WESTERN DISTRICT OF NORTH CAROLINA

Joshua B. Carpenter

Counsel of Record

Appellate Chief

One Page Avenue, Suite 210

Asheville, North Carolina 28801

(828) 232-9992

Joshua_Carpenter@fd.org

Counsel for Petitioner

Dated: July 16, 2021

THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036

(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com

i

QUESTION PRESENTED

This petition presents a question that divides the circuits but on which this

Court has denied certiorari many times. See, e.g., Brown v. United States, 139 S. Ct.

14 (2018) (Sotomayor, J.) (dissenting from denial of certiorari). As explained in the

petition, recent developments that have broadened and entrenched the circuit conflict

provide good reasons for the Court to finally grant certiorari and resolve this

important and recurring issue.

A federal statute, 28 U.S.C. § 2255, provides that a criminal defendant may

file a motion to vacate his sentence based on constitutional error within one year of

“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). The question

presented is:

Does a post-conviction motion asserting the following claim—that a sentence

violates due process under Johnson v. United States, 135 S. Ct. 2551 (2015), because

it was dictated by the residual clause of the pre-Booker mandatory Sentencing

Guidelines—qualify as a motion that “assert[s]” the “right . . . initially recognized” in

Johnson within the meaning of 28 U.S.C. § 2255(f)(3)?

ii

LIST OF PARTIES TO THE PROCEEDING

All parties appear in the caption of the case on the cover page.

STATEMENT OF RELATED CASES

United States v. Tye Sarratt, Case No. 3:01-CR-l6-01, District Court for the Western

District of North Carolina. Judgment entered April 29, 2002.

Tye Sarratt v. United States, Case No. 3:16-cv-00365, District Court for the Western

District of North Carolina. Order denying and dismissing Section 2255 motion

entered November 15, 2018.

Tye Sarratt v. United States, No. 19-6075, United States Court of Appeals for the

Fourth Circuit. Judgment affirming district court’s denying and dismissing Section

2255 motion entered February 22, 2021

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

LIST OF PARTIES TO THE PROCEEDING ............................................................... ii

STATEMENT OF RELATED CASES .......................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

DECISIONS BELOW .................................................................................................... 1

JURISDICTION............................................................................................................. 1

RELEVANT STATUTORY PROVISION ...................................................................... 1

STATEMENT OF THE CASE ....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................... 7

I.

The circuits are deeply and intractably divided ..................................... 7

II.

The question presented is important and recurring, and this case

presents a clean vehicle for review ........................................................ 10

III.

The decision below is wrong................................................................... 13

A.

The circuit majority interpretation butchers the statutory

text ............................................................................................... 13

B.

The circuit majority interpretation misapplies this Court’s

new-rule jurisprudence................................................................ 19

CONCLUSION............................................................................................................. 24

iv

APPENDIX:

Unpublished Opinion of

The United States Court of Appeals

For the Fourth Circuit

Re: Affirming the District Court’s Judgment

entered February 22, 2021 ..................................................................... 1a

Judgment of

The United States Court of Appeals

For the Fourth Circuit

entered February 22, 2021 ..................................................................... 4a

Order of

The United States Court of Appeals

For the Fourth Circuit

Re: Granting Certificate of Appealability

entered December 26, 2019 ................................................................... 7a

Order of

The United States District Court for

The Western District of Virginia

Re: Denying and Dismissing with Prejudice Petitioner’s Motion to Vacate,

Set Aside or Correct Sentence under 28 U.S.C. § 2255

entered November 15, 2018 ................................................................... 8a

Judgment in a Criminal Case of

The United States District Court for

The Western District of Virginia

entered April 30, 2002 .......................................................................... 12a

v

TABLE OF AUTHORITIES

Page(s)

CASES

Beckles v. United States,

137 S. Ct. 886 (2017) ..................................................................................passim

Brown v. United States,

139 S. Ct. 14 (2018) ............................................................................................. 2

Chaidez v. United States,

568 U.S. 342 (2013) ............................................................................... 19, 20, 23

Chambers v. United States,

763 F. App’x 514 (6th Cir. 2019) ......................................................................... 9

Clemons v. Mississippi,

494 U.S. 738 (1990) ........................................................................................... 22

Corley v. United States,

556 U.S. 303 (2009) ........................................................................................... 16

Cross v. United States,

892 F.3d 288 (7th Cir. 2018) ......................................................................passim

Headbird v. United States,

813 F.3d 1092 (8th Cir. 2016) ........................................................................... 20

Hodges v. United States,

778 F. App’x 413 (9th Cir. 2019) ................................................................... 9, 10

In re Griffin,

823 F.3d 1350 (11th Cir. 2016) ....................................................................... 8, 9

James v. United States,

550 U.S. 192 (2007) ....................................................................................... 3, 12

Johnson v. United States,

135 S. Ct. 2551 (2015) ................................................................................passim

Jones v. United States,

Sup. Ct. No. 20-7522 (June 28, 2021) ............................................................... 12

vi

Lester v. United States,

921 F.3d 1306 (11th Cir. 2019) ..................................................................... 9, 10

Moore v. United States,

871 F.3d 72 (1st Cir. 2018) ........................................................................... 9, 17

Mora-Higuera v. United States,

914 F.3d 1152 (8th Cir. 2019) ................................................................... 5, 6, 10

Nunez v. United States,

954 F.3d 465 (2d Cir. 2020) ................................................................................ 8

Raybon v. United States,

867 F.3d 625 (6th Cir. 2017) ........................................................................... 8, 9

Russo v. United States,

902 F.3d 880 (8th Cir. 2018) ............................................................................... 8

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ........................................................................... 15, 18, 23

Shea v. United States,

976 F.3d 63 (1st Cir. 2020) ........................................................................passim

Sotelo v. United States,

922 F.3d 848 (7th Cir. 2019) ............................................................................. 10

Stringer v. Black,

503 U.S. 222 (1992) ........................................................................................... 22

Taylor v. United States,

495 U.S. 575 (1990) ............................................................................................. 3

Teague v. Lane,

489 U.S. 288 (1989) ....................................................................................passim

United States v. Arrington,

--- F.3d ---, 2021 WL 2932260 (D.C. Cir. July 13, 2021) ...........................passim

United States v. Bacote,

189 F. App’x 191 (4th Cir. 2006) ................................................................... 3, 12

United States v. Blackstone,

903 F.3d 1020 (9th Cir. 2018) ......................................................................... 8, 9

vii

United States v. Booker,

543 U.S. 220 (2005) ....................................................................................passim

United States v. Brown,

868 F.3d 297 (4th Cir. 2017) ......................................................................passim

United States v. Davis,

139 S. Ct. 2319 (2019) ................................................................................. 15, 18

United States v. Green,

898 F.3d 315 (3d Cir. 2018) ............................................................................ 8, 9

United States v. Hammond,

351 F. Supp. 3d 106 (D.D.C. 2018) ................................................................... 21

United States v. Jones,

832 F. App’x 929 (6th Cir. Oct. 19, 2020) ................................................... 10, 12

United States v. London,

937 F.3d 502 (5th Cir. 2019) ............................................................... 8, 9, 17, 23

United States v. Pullen,

913 F.3d 1270 (10th Cir. 2019) ........................................................................... 8

United States v. Rumph,

824 F. App’x 165 (4th Cir. 2020), reh’g denied,

2020 U.S. App. LEXIS 38943 (4th Cir. Dec. 11, 2020) .................................... 10

United States v. Wolfe,

767 F. App’x 390 (3d Cir. 2019) ........................................................................ 10

Welch v. United States,

136 S. Ct. 1257 (2016) ......................................................................................... 4

Wood v. Milyard,

566 U.S. 463 (2012) ........................................................................................... 18

Wright v. West,

505 U.S. 277 (1992) ........................................................................................... 21

CONSTITUTIONAL PROVISION

U.S. CONST. amend. I ................................................................................................... 14

viii

STATUTES

18 U.S.C. § 924(c) ..................................................................................................... 2, 15

18 U.S.C. § 924(e)........................................................................................................... 3

18 U.S.C. § 2119 ............................................................................................................. 2

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

28 U.S.C § 2255 .............................................................................................. 5, 6, 17, 19

28 U.S.C. § 2255(f) ................................................................................................... 1, 18

28 U.S.C. § 2255(f)(3) ............................................................................................passim

GUIDELINES

U.S.S.G. § 4B1.2 ............................................................................................................. 3

U.S.S.G. § 4B1.2(a)(1) .................................................................................................... 3

U.S.S.G. § 4B1.2(a)(2) .................................................................................................... 3

U.S.S.G. § 5A.................................................................................................................. 4

OTHER AUTHORITIES

137 Cong. Rec. S8558-02, 1991 WL 111516 (June 25, 1991) ..................................... 19

ASSERT, Black’s Law Dictionary (11th ed. 2019) ........................................................ 14

HOLDING, Black’s Law Dictionary (11th ed. 2019) ..................................................... 16

RIGHT, Black’s Law Dictionary (11th ed. 2019) .......................................................... 17

Section 404 of the First Step Act................................................................................. 12

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Tye Sarratt respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Fourth Circuit in this

case.

DECISIONS BELOW

The Fourth Circuit’s unpublished opinion is reprinted at Pet. App. 1a-31a.

The Fourth Circuit’s published precedent on this issue, on which the unpublished

opinion relies, is reported at 868 F.3d 297. The district court’s written judgment is

reprinted at Pet. App. 8a-11a.

JURISDICTION

The court of appeals entered its judgment on February 22, 2021. Pet. App. 1a.

This petition is timely filed based on this Court’s March 2020 order extending the

deadline for filing a petition for certiorari from 90 days to 150 days. This Court has

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

RELEVANT STATUTORY PROVISION

A federal statute, 28 U.S.C. § 2255(f), provides in relevant part: “A 1-year

period of limitation shall apply to a motion under this section. The limitation period

shall run from the latest of . . . (3) 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.”

2

STATEMENT OF THE CASE

This petition presents an issue on which this Court has denied certiorari in

many cases. See, e.g., Brown v. United States, 139 S. Ct. 14 (2018). If past is

prologue, this petition is hopeless and will be perfunctorily denied.

But there are good reasons for a different outcome this time around. The

undisputed circuit split at the heart of this petition, which the Solicitor General has

previously dismissed as “shallow,” has deepened and become entrenched. Prisoners

in the First, Seventh, and D.C. Circuits are now receiving relief from unduly

draconian sentences imposed under the residual clause of the career-offender

guideline, which was mandatory (rather than advisory) at the time of their

sentencings. By contrast, prisoners with identical sentences in every other circuit

remain procedurally barred from having their claims considered on the merits.

This Court should end these geographic disparities and decide, once and for

all, the important and recurring statutory-interpretation issue presented by this

petition. This case presents an ideal vehicle for the Court to do so.

1.

In July 2001, the petitioner, Tye Sarratt, pled guilty in federal court to

one count of carjacking in violation of 18 U.S.C. § 2119 and one count of possessing

a firearm during and in relation to a crime of violence in violation of 18 U.S.C.

§ 924(c). At sentencing, Sarratt was subject to an enhanced guidelines range

because his two prior North Carolina convictions for “attempted breaking or

entering” qualified as “crimes of violence” under the career-offender provision. That

provision defined a “crime of violence” as follows:

3

(a)

The term “crime of violence” means any offense under federal or

state law, punishable by imprisonment for a term exceeding one

year, that—

(1)

has as an element the use, attempted use, or threatened

use of physical force against the person of another, or

(2)

is burglary of a dwelling, arson, or extortion, involves use

of explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2 (2000). 1 This definition was based on, and incorporated much of its

language from, the “violent felony” definition in the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e). See U.S.S.G. Supp. App. C, Amend. 268, at 132-33.

Sarratt’s prior convictions for attempted breaking or entering did not satisfy

§ 4B1.2(a)(1)’s element-of-force requirement or qualify as the enumerated offense of

“burglary of a dwelling” under § 4B1.2(a)(2). See James v. United States, 550 U.S.

192, 197 (2007) (holding that attempted burglary does not involve an element of

force and does not satisfy the definition of generic burglary adopted in Taylor v.

United States, 495 U.S. 575 (1990)); see also United States v. Bacote, 189 F. App’x

191, 194 (4th Cir. 2006) (concluding that a § 14-54 conviction “was not burglary of a

dwelling” as required by § 4B1.2 because it encompasses non-dwelling burglaries).

Instead, those prior convictions qualified as crimes of violence solely because of

§ 4B1.2(a)(2)’s “residual clause,” which covered an offense that “otherwise involves

conduct that presents a serious potential risk of physical injury to another.” See

James, 550 U.S. at 197; see also Bacote, 189 F. App’x at 194-95 (holding that district

The Sentencing Commission amended the crime-of-violence definition in 2016 by, among other

things, removing Section 4B1.2(a)(2)’s “residual clause.” See U.S.S.G. Supp. App. C, Amend. 798.

1

4

court should have determined whether a § 14-54 conviction satisfied the residual

clause).

The career-offender enhancement more than doubled Sarratt’s sentencing

exposure, creating a mandatory guidelines range of 188 to 235 months on Count

One. See Court of Appeals Joint Appendix (“CAJA”), at 86 (citing Presentence

Report at ¶ 54). Absent the career-offender enhancement, his range would have

been 70 to 87 months. 2 Because Sarratt was sentenced before this Court’s decision

in United States v. Booker, 543 U.S. 220 (2005), the district court was required to

impose a sentence within the career-offender sentencing range. Id. at 234

(explaining that “no departure will be legally permissible” in “most cases,” meaning

that “the judge is bound to impose a sentence within the Guidelines range”). The

district court in fact imposed a low-end sentence of 188 months on the carjacking

count—equal to the lowest sentence that was legally permissible at the time. CAJA

16. Sarratt also received a mandatory, consecutive sentence of 120 months on the

related firearm count. CAJA 16.

2.

In 2015, this Court struck down the ACCA’s residual clause as

“unconstitutionally vague.” See Johnson v. United States, 135 S. Ct. 2551, 2557

(2015). It subsequently held that Johnson is a substantive decision and thus “has

retroactive effect under Teague in cases on collateral review.” Welch v. United

States, 136 S. Ct. 1257, 1265 (2016).

2 This calculation is based on an adjusted offense level of 25 and a criminal history category of III, as

calculated by the presentence report before application of the career-offender enhancement. See

CAJA 80, 83; see also U.S.S.G. § 5A (sentencing table).

5

The Court later held that that Johnson’s vagueness holding does not apply in

the context of a challenge to the calculation of the advisory guidelines range. See

Beckles v. United States, 137 S. Ct. 886 (2017). It explained that, in the criminal

context, the “void for vagueness” doctrine undergirding the Johnson rule applies

only to “laws that define criminal offenses and laws that fix the permissible

sentences for criminal offenses.” Id. at 892 (emphases in original). Because the

guidelines in their now-advisory form “do not fix the permissible range of

sentences,” the Court held that the advisory guidelines “are not subject to a

vagueness challenge.” Id.

The Court’s analysis in Beckles expressly distinguished the now-advisory

guidelines that “merely guide the district courts’ discretion” from the previously

mandatory guidelines that “were initially binding” and that “constrain[ed]” the

district courts. Id. at 894. And the Court explained that the reason the advisory

guidelines “are not amenable to a vagueness challenge” is “[b]ecause they merely

guide the district courts’ discretion.” Id.

3.

In June 2016, Sarratt filed a post-conviction motion under 28 U.S.C

§ 2255 to assert a claim that his career-offender sentence was unconstitutional

under Johnson. His case was held in abeyance pending the Beckles decision, at

which point he filed a supplemental memorandum explaining that, in contrast to

the advisory guidelines scheme at issue in Beckles, he was sentenced under the

mandatory guidelines scheme in effect before Booker. That distinction, he

contended, was dispositive because “the pre-Booker guidelines ‘fix[ed] the

6

permissible sentences for criminal offenses’ in the same way the ACCA’s residual

clause ‘fixed—in an impermissibly vague way—a higher range of sentences for

certain defendants.’” See CAJA at 38 (quoting Beckles, 137 S. Ct. at 892).

Less than six months after Beckles was decided and while Sarratt’s motion

remained pending in the district court, the Fourth Circuit issued its decision in

United States v. Brown, 868 F.3d 297 (4th Cir. 2017)—a case where the defendant,

like Sarratt, raised a Johnson-based challenge to his mandatory career-offender

sentence. The Court did not reach the merits question of whether the pre-Booker

residual clause is unconstitutionally vague. Instead, the panel majority held, over

Chief Judge Gregory’s dissent, that the defendant’s Section 2255 motion was

“untimely under 28 U.S.C. § 2255(f)(3),” which provides for a one-year limitations

period that runs from “the date on which the right asserted was initially recognized

by the Supreme Court.” Brown, 868 F.3d at 299. In support of that holding, the

panel majority reasoned that the scope of the Johnson rule is limited to the ACCA

context:

“Johnson

only

recognized

that

ACCA’s

residual

clause

was

unconstitutionally vague.” Id. at 303. Based on that narrow understanding of the

Johnson rule, the panel majority held that the Supreme Court had not yet

“recognized” the right the defendant sought to apply. Id.; see id. at 302 (stating that

“the Beckles Court carefully crafted its holding to avoid deciding whether the logic of

Johnson applied outside the context of ACCA”).

In light of these developments, Sarratt filed a supplemental memorandum in

the district court. He conceded that his Johnson claim was untimely based on the

7

holding in Brown, but he sought a certificate of appealability to pursue further

review of Brown’s timeliness holding. The district court agreed that Sarratt’s

motion was untimely under Brown, and it therefore “denied and dismissed” his

motion. Pet. App. 8a-11a. The court also declined to issue a certificate of

appealability. Pet. App. 10a-11a.

On appeal, the Fourth Circuit granted a certificate of appealability on

“whether [Sarratt] timely challenged his mandatory career offender sentencing

enhancement as invalid under Johnson v. United States, 135 S. Ct. 2551 (2015).”

Pet. App. 7a. After receiving briefing, the court issued an unpublished opinion

affirming the district court’s order based on the Brown precedent. It reasoned that

“Brown’s framework” remains “binding” and that Sarratt’s “motion, therefore, does

not qualify as timely under § 2255(f)(3).” Pet. App. 3a.

REASONS FOR GRANTING THE WRIT

I.

The circuits are deeply and intractably divided.

The availability of sentencing relief for a criminal defendant like Sarratt

depends entirely on the happenstance of geography. Those in the First, Seventh,

and D.C. Circuits are receiving relief. Those with identical convictions and

sentences in other circuits are foreclosed from even having their claims reviewed on

the merits.

The details of the circuit split are well documented. See, e.g., United States v.

Arrington, --- F.3d ---, 2021 WL 2932260, *6 (D.C. Cir. July 13, 2021) (collecting

cases). Eight circuits—including the Fourth Circuit in the decision below—hold

8

that § 2255(f)(3)’s limitations period does not apply to post-conviction motions, like

Sarratt’s, that challenge a sentence imposed under the mandatory career-offender

guideline’s residual clause. See Nunez v. United States, 954 F.3d 465, 471 (2d Cir.

2020); United States v. Green, 898 F.3d 315 (3d Cir. 2018); United States v. Brown,

868 F.3d 297 (4th Cir. 2017); United States v. London, 937 F.3d 502 (5th Cir. 2019);

Raybon v. United States, 867 F.3d 625 (6th Cir. 2017); Russo v. United States, 902

F.3d 880 (8th Cir. 2018); United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018);

United States v. Pullen, 913 F.3d 1270, 1283-84 (10th Cir. 2019). One circuit, the

Eleventh, holds that sentences under the mandatory guidelines are immune from

vagueness challenges without directly addressing the statute-of-limitations issue.

In re Griffin, 823 F.3d 1350 (11th Cir. 2016).

On the other hand, the First, Seventh, and D.C. Circuits hold that

§ 2255(f)(3) permits such petitions to proceed as timely filed. Shea v. United States,

976 F.3d 63 (1st Cir. 2020); Cross v. United States, 892 F.3d 288 (7th Cir. 2018);

Arrington,--- F.3d ---, 2021 WL 2932260. The First and Seventh Circuits also hold,

on the merits, that the Johnson decision invalidates the mandatory career-offender

guideline’s residual clause, while the D.C. Circuit’s recent Arrington decision

remanded for the district court to consider that merits issue in the first instance.

Shea, 976 F.3d at 81-82; Cross, 892 F.3d at 299-307; Arrington, 2021 WL 2932260,

*7.

The top line numbers of the split—nine on one side and three on the other—

understate the split’s depth. Several judges in the nine-circuit majority have

9

registered their disagreement and urged further review of the issue. See, e.g.,

Chambers v. United States, 763 F. App’x 514, 519 (6th Cir. 2019) (Moore, J.,

concurring), rh’g denied, No. 18-3298 (6th Cir. June 26, 2019) (expressing view that

Raybon “was wrong on this issue”); Brown, 868 F.3d at 304-05, 310 (Gregory, C.J.,

dissenting) (“Because Brown asserts th[e] same right [recognized in Johnson], I

would find his petition timely under § 2255(f)(3), even though his challenge is to the

residual clause under the mandatory Sentencing Guidelines, rather than the

ACCA.”); London, 937 F.3d at 510 (5th Cir.) (Costa, J., concurring in judgment)

(“We are on the wrong side of a split. . . . Our approach fails to apply the plain

language of the statue and undermines the prompt presentation of habeas claims

the statute promotes.”); Hodges v. United States, 778 F. App’x 413, 414-15 (9th Cir.

2019) (Berzon, J., concurring) (“[I]n my view, Blackstone was wrongly decided.”);

Lester v. United States, 921 F.3d 1306, 1319 (11th Cir. 2019) (en banc) (Martin, J.,

joined by Rosenbaum and J. Pryor, JJ., statement respecting the denial of rehearing

en banc) (“[T]he opinion in In re Griffin is mistaken.”).

Since this Court’s initial denials of certiorari, the circuit split on this issue

has deepened and become entrenched. For a while, the Seventh Circuit’s decision in

Cross stood alone as the sole decision bucking the majority. But the First Circuit

joined Cross in a Septmeber 2020 decision while observing that the mere fact that

the majority of circuits “have snowballed down one path doesn’t mean we should

follow them.” Shea, 976 F.3d at 69. Even more recently, the D.C. Circuit in July

2021 joined Cross and Shea, noting that the courts in the circuit majority “have,

10

with some exceptions, largely elided the key interpretive questions we address

today.” Arrington, --- F.3d ---, 2021 WL 2932260, *6.

Any possibility of the split resolving itself has now passed. The Seventh

Circuit denied the government’s en banc rehearing petition in Cross and later

expressly declined the government’s suggestion to reconsider Cross in a subsequent

case. See Sotelo v. United States, 922 F.3d 848, 851 (7th Cir. 2019). Likewise, the

circuits in the majority have repeatedly declined to reconsider their holdings. See,

e.g., United States v. Jones, 832 F. App’x 929 (6th Cir. Oct. 19, 2020); United States

v. Rumph, 824 F. App’x 165, 168-69 (4th Cir. 2020), reh’g denied, 2020 U.S. App.

LEXIS 38943 (4th Cir. Dec. 11, 2020); Order, Hodges v. United States, 778 F. App’x

413 (9th Cir. Oct. 17, 2019) (No. 17-35408); Lester, 921 F.3d at 1307; United States

v. Wolfe, 767 F. App’x 390, 391 (3d Cir. 2019); Mora-Higuera v. United States, 914

F.3d 1152, 1154 (8th Cir. 2019).

In short, the circuit conflict is deep and entrenched. Only this Court can

resolve it.

II.

The question presented is important and recurring, and this case

presents a clean vehicle for review.

It is beyond dispute that the issue presented in this case is a recurring one,

as evidenced by the numerous petitions raising the issue in this Court over the past

several terms. The issue is undoubtedly important as well, given that it impacts the

liberty interests of countless federal prisoners. “Regardless of where one stands on

the merits of how far Johnson extends, this case presents an important question of

federal law that has divided the courts of appeals and in theory could determine the

11

liberty of over 1,000 people.” Brown, 139 S. Ct. at 14 (Sotomayor, J., dissenting from

the denial of certiorari).

If this Court does not intervene to answer the question presented, the result

will be continued geographic disparities in the criminal justice system. Such

disparate outcomes, based on nothing more than the federal circuit in which an

offender was convicted, tarnish the integrity and public reputation of our criminal

justice system. A decision by this Court to forever duck such an important criminal

justice issue would tarnish this Court’s reputation as well.

This case presents a very clean vehicle for the Court to finally address this

issue, as the courts below relied solely on the timeliness issue without any

alternative holdings or any consideration of the claim’s merits. See Pet. App. at 3a,

10a. Given that posture, the Court can focus solely on the timeliness issue, which

presents nothing more than a question of statutory interpretation. If the claim is

deemed timely, as it should be, the Court can then remand for further proceedings

to consider the merits. See Arrington, --- F.3d ---, 2021 WL 2932260, *7 (finding the

defendant’s motion timely under § 2255(f)(3) and remanding for the district court to

determine, in the first instance, “whether [the defendant’s] petition was otherwise

procedurally barred or whether it could succeed on the merits”). This posture will

allow the court to avoid potentially complicating issues presented in other petitions,

such as whether the predicates in question qualified under a different provision of

the career-offender definition.

12

The vast majority of this Court’s denials of certiorari came before the First

Circuit’s decision in Shea served to deepen and firmly entrench the circuit conflict.

The most recent denial came in Jones v. United States, Sup. Ct. No. 20-7522 (June

28, 2021). Although that petition was filed after the Shea decision, the Jones case

was an improper vehicle for this Court’s review because the government conceded

that the petitioner there should receive relief from his career-offender sentence

through another mechanism, namely Section 404 of the First Step Act. See Brief of

Respondent (May 26, 2021), at 13-14. That concession mooted the petitioner’s postconviction motion as a practical matter (if not as a doctrinal matter). Here, by

contrast, Petitioner’s offense is not a crack-cocaine offense covered by the First Step

Act, and the government has not agreed to relief from the career-offender error

through any other mechanism.

Moreover, the denial in Jones occurred before the D.C. Circuit issued its

Arrington decision in July 2021. Now that every circuit with criminal jurisdiction

has weighed in, this Court should grant certiorari to resolve the circuit split.

Finally, although a grant of certiorari to resolve the timeliness issue would be

warranted either way given the posture of this case, it is worth highlighting that

the timeliness issue will almost certainly determine whether Sarratt is ultimately

able to receive relief. As noted above, precedent makes clear that Sarratt’s prior

convictions do not qualify under any of the career-offender provision’s remaining

provisions. See James, 550 U.S. at 197; Bacote, 189 F. App’x at 194. Likewise, the

affirmative defenses preserved in the government’s initial district-court pleadings

13

are all but foreclosed by precedent. See Sarratt’s Fourth Circuit Brief (Doc. No. 21),

at 32-38 (addressing these arguments); see also Cross, 892 F.3d at 294-300

(rejecting similar arguments). In short, if Sarratt’s motion is deemed timely, as it

would be in the First, Seventh, and D.C. Circuits, he would almost certainly receive

relief on the merits. But, again, the posture of this case makes it unnecessary for

the Court to wade into any of the merits-related questions.

III.

The decision below is wrong.

The interpretation of § 2255(f)(3)’s limitation period adopted by the majority

of circuits, including the Fourth Circuit’s Brown decision on which the panel below

relied, is legally flawed in two primary respects. First, the majority reading conflicts

with basic principles of textualism and statutory interpretation. It rewrites the

statutory language by requiring a defendant to prove an entitlement to relief based

on a Supreme Court holding, whereas Congress required only that a defendant

assert an entitlement to relief based on a right recognized by the Supreme Court.

Second, the majority interpretation conflicts with this Court’s well-established

framework for distinguishing claims that seek application of a previously recognized

right from those that would require the creation of a new right.

A.

The circuit majority interpretation butchers the statutory text.

Let’s start with the text. The statute provides that a motion is timely if filed

within one year of “the date on which the right asserted was initially recognized by

the Supreme Court.” 28 U.S.C. § 2255(f)(3) (emphasis added). According to Black’s

Law Dictionary, the word “assert” means to “[t]o state positively” or “[t]o invoke or

14

enforce a legal right.” ASSERT, Black’s Law Dictionary (11th ed. 2019). Thus, a

motion is timely under Section 2255(f)(3) if it “invokes” a right newly recognized by

the Supreme Court. Or, as the Seventh Circuit put it, a movant establishes

timeliness simply by “claim[ing] the benefit of a right that the Supreme Court has

recently recognized.” Cross, 892 F.3d at 294.

The D.C. Circuit leaned heavily on the meaning of “assert” in determining

the timeliness issue. After reviewing four different dictionary definitions, the court

concluded that Congress’s choice of the word “asserted” means that, “for a motion to

be timely under section 2255(f)(3), it need only ‘state’ or ‘invoke’ the newly

recognized right, not conclusively prove that the right applies to the movant’s

circumstances.” Arrington, --- F.3d ---, 2021 WL 2932260, *5. The court buttressed

its reliance on dictionaries with an ordinary-usage example: “Suppose an individual

challenges a speech restriction, but it turns out her speech was unprotected

incitement. Applying section 2255’s vocabulary, we could quite naturally say that

she had asserted the right to free speech recognized by the First Amendment, even

though she was ultimately wrong about the right’s application to her case.” Id. This

example, the court explained, “demonstrate[s] a generally applicable linguistic

point: ‘asserting’ a right is an entirely different matter than proving that you can

successfully claim its benefit.” Id.

In Brown, the Fourth Circuit’s panel majority focused not on the word

“asserts” but instead on the word “recognized.” 868 F.3d at 299. It reasoned that the

rule “recognized” in Johnson was limited to the ACCA context. 868 F.3d at 301-03.

15

Therefore, because Brown was not challenging an ACCA sentence, he was not

asserting the right “recognized” in Johnson. Id. at 303. To the extent that line of

reasoning—casting Johnson as an ACCA-only decision—ever had any persuasive

value, it has been undermined entirely by the subsequent decision in Dimaya,

which confirmed that Johnson has application outside the ACCA context. See

Sessions v. Dimaya, 138 S. Ct. 1204 (2018). As Dimaya explains, Johnson recognizes

a non-ACCA-specific right, a right not to face mandatory punishment due to

application of a residual clause that shares the dual features of “an ordinary-case

requirement and an ill-defined risk threshold.” Id. at 1223; see also United States v.

Davis, 139 S. Ct. 2319 (2019) (holding that Johnson invalidates the residual clause

of 18 U.S.C. § 924(c)).

Here, Sarratt has asserted precisely this right. He asserts that his sentence is

unconstitutional because he faced mandatory punishment under the career-offender

guideline due to a residual clause that suffers from the same two features that

combined to invalidate the residual clauses in the ACCA, Section 16(b), and Section

924(c). A claim based on such an assertion should be timely if filed within a year of

Johnson, and that remains true without regard to whether the claim ultimately

prevails on the merits. As the Seventh Circuit explained in Cross, the government’s

alternative reading—now adopted by a majority of circuits—”suffers from a

fundamental flaw” in that it “improperly reads a merits analysis into the limitations

period.” Cross, 892 F.3d at 293; see also Arrington, ,--- F.3d ---, 2021 WL 2932260, *5

16

(explaining that the “central defect in the government’s approach” is that it

“collapses the timeliness and merits inquiries into one”).

The government’s interpretation violates a core principle of statutory

interpretation by rendering the word “asserted” completely superfluous. See Corley

v. United States, 556 U.S. 303, 314 (2009) (“a statute should be construed so that

effect is given to all its provisions, so that no part will be inoperative or superfluous,

void or insignificant”) (cleaned up). The Seventh Circuit explained this point

succinctly:

Section 2255(f)(3) runs from ‘the date on which the right asserted was

initially recognized by the Supreme Court. It does not say that the

movant must ultimately prove that the right applies to his situation;

he need only claim the benefit of a right that the Supreme Court has

recently recognized. An alternative reading would require that we take

the disfavored step of reading “asserted” out of the statute.”

Cross, 892 F.3d at 294 (emphases in original; internal citations omitted); see also

Arrington, ,--- F.3d ---, 2021 WL 2932260, *5 (rejecting the government’s “approach”

because it “reads the word ‘asserted’ out of section 2255(f)(3)”).

Another component of the statutory text further supports this interpretation.

Congress chose to make timeliness turn on whether the movant’s claim is based on

a “right” recently recognized by the Supreme Court, not on whether the claim is

based on the “holding” of a recent Supreme Court case. See 28 U.S.C. § 2255(f)(3).

This word choice is important because a “right” is broader than the “holding” of a

particular case. Compare HOLDING, Black’s Law Dictionary (11th ed. 2019) (“A

court’s determination of a matter of law pivotal to its decision.”), with

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RIGHT, Black’s Law Dictionary (11th ed. 2019) (“Something that is due to a person

by just claim, legal guarantee, or moral principle.”).

The D.C. Circuit relied on this textual point as well. It explained that

§ 2255(f)(3) “turns on what ‘right’ the Supreme Court recognized in a prior case. It

does not turn on the case’s precise holding or, as AEDPA does elsewhere, the

content of ‘clearly established Federal law.’” Arrington, ,--- F.3d ---, 2021 WL

2932260, *4. The court also reviewed several dictionaries, concluding that “all

relevant definitions invariably define a ‘right’ at a relatively high level of

generality.” Id. Several other courts and judges have relied on this same textual

feature in determining that a motion like Sarratt’s is timely under § 2255(f)(3). See

Moore v. United States, 871 F.3d 72 (1st Cir. 2018) (noting that “Congress in § 2255

used words such as ‘rule’ and ‘right’ rather than ‘holding’” and explaining that

“Congress presumably used these broader terms because it recognizes that the

Supreme Court guides the lower courts not just with technical holdings but with

general rules that are logically inherent in those holdings”); London, 937 F.3d at

511 (Costa, J., concurring in the judgment) (arguing that the Fifth Circuit’s

interpretation errs by “requir[ing] a holding when the statute requires only

Supreme Court recognition of the right”) (emphases added); Brown, 868 F.3d at 304

(Gregory, C.J., dissenting) (criticizing the majority for limiting the “right”

recognized in Johnson to the case’s “narrow holding” and concluding that the

statutory language “is more sensibly read to include the reasoning and principles

that explain” the holding).

18

Armed with this understanding of the statutory text, the question presented

by this case is easily resolved. Like the defendant in Arrington, Sarratt asserts that

his mandatory sentence based on the residual clause violates the “right” recognized

in Johnson—that is, the “right not to have one’s sentence dictated by a rule of law

using the residual clause’s vague language.” Arrington, --- F.3d ---, 2021 WL

2932260, *4. That understanding of the Johnson “right” accords not only with

Johnson itself but also with this Court’s articulation of the right in Beckles, Dimaya,

and Davis. As the D.C. Circuit concluded, a motion that invokes this right is timely

under § 2255(f)(3): “whether or not Arrington’s case indeed falls within that refined

articulation of the right, he has plainly ‘asserted’ that right as the basis for his

petition.” Id.

This reading also accords with Section 2255(f)(3)’s purpose as a limitations

period. As this Court has explained, a statute of limitations is a “threshold bar.”

Wood v. Milyard, 566 U.S. 463, 466 (2012). Any statute-of-limitations analysis

necessarily comes before a merits analysis, and parties can freely waive limitations

defenses. See id. Thus, it makes sense that Congress would frame § 2255(f)‘s

limitations period in terms of the right “asserted” by the prisoner, as that premerits requirement matches the threshold nature of a statute of limitations. The

contrary interpretation conflates timeliness with the merits, something that

Congress surely did not intend. See Cross, 892 F.3d at 293.

In sum, Congress chose in the text of § 2255(f)(3) to make timeliness turn on

whether the defendant asserts that he is entitled to relief based on a right that the

19

Supreme Court has recently recognized. The government’s reading, by contrast,

would make timeliness turn on whether the defendant proves that he is entitled to

relief based on the holding of a recent Supreme Court case. This Court should reject

that rewriting of the statutory language.

B.

The circuit majority interpretation misapplies this Court’s

new-rule jurisprudence.

Sarratt’s interpretation of the statutory language finds additional support in

this Court’s retroactivity case law. Before 1996, Congress did not provide any

limitations period for the filing of a Section 2255 motion. See 28 U.S.C. § 2255

(1995) (“A motion for such relief may be made at any time.”). When Congress

adopted a one-year limitations period in 1996, it crafted the language of Section

2255(f)(3) against the backdrop of well-established Supreme Court precedent

governing whether a decision qualifies as “new” for purposes of post-conviction

review. See, e.g., Teague v. Lane, 489 U.S. 288 (1989); see also 137 Cong. Rec. S855802, 1991 WL 111516, at *45, *48, *53 (June 25, 1991) (floor statement of Sen.

Hatch) (stating that the same limitations language in precursor legislation was

“designed” to “preserve and codify the important Supreme Court rulings in this

area,” and citing Teague as an example).

The Teague framework confirms that Sarratt’s claim is timely. Under Teague,

a case announces a “new rule” when it “breaks new ground,” but it “does not

announce a new rule, when it is merely an application of the principle that governed

a prior decision.” Chaidez v. United States, 568 U.S. 342, 347-48 (2013) (quoting

Teague; internal quotation marks omitted). The circuit courts routinely refer to this

20

framework in determining whether a defendant’s claim satisfies § 2255(f)(3)’s

requirements. See, e.g., Headbird v. United States, 813 F.3d 1092 (8th Cir. 2016)

(recognizing legislative backdrop and collecting cases from numerous circuits

applying the Teague framework in analyzing Section 2255(f)(3)’s applicability).

The First Circuit relied heavily on the Teague framework in concluding that a

claim like Sarratt’s is timely. Shea, 976 F.3d at 68. The Shea court focused its

inquiry on the portion of § 2255(f)(3) requiring that the right asserted be “initially”

or “newly” recognized by the Supreme Court, and it thus asked whether granting

relief on the claim “would require the habeas court to forge a new rule of law not

recognized in Johnson.” Id. at 70. To answer that question, the court laid out the

Teague-Chaidez analytical framework for determining what constitutes a “new

rule”:

[A] case announces a new rule if it breaks new ground or imposes a

new obligation on the government – that is, if the result [is] not

dictated by precedent[.] And a holding is not so dictated unless it

would [be] apparent to all reasonable jurists. But that account has a

flipside: a case does not announce a new rule when it is merely an

application of the principle that governed a prior decision to a different

set of facts. So when a court simply applie[s] the same constitutional

principle to a closely analogous case, it does not create a new rule.

Shea, 976 F.3d at 70-71 (alternations in original; internal quotations and citations

omitted). Under this framework, “the Supreme Court does not announce a new rule

every time it applies the same constitutional principle to a new regulatory scheme.”

Id. at 73-74. Instead, “‘[i]f a proffered factual distinction between the case under

consideration and pre-existing precedent does not change the force with which the

precedent’s underlying principle applies, the distinction is not meaningful, and any

21

deviation from precedent is not reasonable.’” Id. at 74 (quoting Wright v. West, 505

U.S. 277, 304 (1992) (O’Connor, J., concurring)). In other words, this latter scenario

involves merely the application of the previously recognized rule, not the creation of

a new rule.

The First Circuit determined that the defendant’s Johnson-based challenge

to a pre-Booker residual-clause sentence fell into that category, making it timely

filed within a year of Johnson. The court explained that “the government’s proffered

distinctions between the ACCA and the mandatory Guidelines do ‘not change the

force with which [Johnson’s] underlying principle applies’ when, as in most cases,

the defendant was ineligible for a departure from the Guideline range.” 976 F.3d at

74-75 (quoting Wright, 505 U.S. at 304 (O’Connor, J., concurring)). Therefore, the

First Circuit determined:

Johnson dictates the rule Shea asserts: namely, that § 4B1.2(a)(2)’s

residual clause was unconstitutionally vague and could not be applied

to enhance the permissible range of sentences a judge could impose, as

Shea claims it did in his case. As a result, we hold that Shea “asserts”

the same right “newly recognized” in Johnson, making his petition

(filed within a year of that decision) timely.

Id. at *5; see also United States v. Hammond, 351 F. Supp. 3d 106, 127-28 (D.D.C.

2018) (applying Teague framework to conclude that the defendant’s claim was

timely because “Johnson articulated a new rule that Hammond merely asks to be

applied to a materially indistinguishable circumstance, simply swapping the

ACCA’s residual clause for its mandatory-Guidelines’ parallel”).

In contrast to this Teague-based reasoning, the Fourth Circuit’s controlling

decision below did not consider the Teague framework at all. Its failure to do so led

22

it to misread the significance of Justice Sotomayor’s statement that Beckles “leaves

open” the question whether pre-Booker sentences are subject to a Johnson-based

vagueness challenge. See Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J., concurring).

Under the Fourth Circuit panel majority’s view, that statement means that only a

future Supreme Court decision can create the “new” rule needed to trigger the

§ 2255(f)(3) limitations period. 868 F.3d at 303 (“we must wait for the Supreme

Court to recognize the right urged by Petitioner”). But that analysis fails to

recognize that resolving an “open” question does not involve the creation of a “new”

rule if doing so requires “merely an application of the principle that governed a

prior decision to a different set of facts.” Shea, 976 F.3d at 71.

This Court’s retroactivity jurisprudence illustrates both that principle and

the flaw in the Fourth Circuit’s reasoning. Consider the decision in Stringer v.

Black, 503 U.S. 222 (1992), where this Court analyzed whether Clemons v.

Mississippi, 494 U.S. 738 (1990), announced a “new” rule under Teague. The state of

Mississippi argued that Clemons was necessarily “new” because it resolved an issue

that the Supreme Court had “left open” by “express language” in a prior case.

Stringer, 503 U.S. at 230. The Supreme Court rejected that argument. It reasoned

that, although a prior case left the issue “open,” its resolution of that issue in

Clemons was not “new” because it required only the application of “a well-settled

principle” established by prior cases. 503 U.S. at 237.

That same rationale controls here. Although Justice Sotomayor described the

mandatory-guidelines question as “open” in Beckles, resolving that question would

23

not create a “new rule” because it requires “merely an application of the principle

that governed a prior decision to a different set of facts.” Chaidez, 568 U.S. at 34748 (internal quotation marks omitted). This Court’s post-Beckles decision in Dimaya

makes this clear by holding that a “straightforward application” of Johnson’s rule

requires the invalidation of Section 16(b)’s residual clause. As the Seventh Circuit

recognized, “the textual differences between the ACCA and guidelines pale in

comparison to the differences between ACCA and section 16.” Cross, 892 F.3d at

302. Thus, striking down the mandatory guidelines’ residual clause—like striking

down Section 16(b)—would require only an “application” of the Johnson rule for

purposes of the Teague doctrine. See Shea, 976 F.3d at 69; Brown, 868 F.3d at 310

(Gregory, C.J., dissenting) (reasoning that, because “the mandatory Guidelines’

residual clause presents the same problems of notice and arbitrary enforcement as

the ACCA’s residual clause at issue in Johnson,” the defendant challenging such a

sentence “is asserting the right newly recognized in Johnson”); London, 937 F.3d at

511 (Costa, J., concurring in judgment) (holding that a challenge to a pre-Booker

residual-clause sentence “asserted the right to be free from vague laws ‘fixing

sentences’ that Johnson recognized”). For this reason, a claim challenging a preBooker residual-clause sentence is timely if filed within one year of Johnson.

*

*

*

In sum, the controlling decision below—and the circuit majority that has

fallen in line with the same position—is flawed because it misreads the relevant

statutory text and conflicts with this Court’s “new rule” precedent. The circuit

24

minority, by contrast, has correctly concluded that a claim like Sarratt’s is timely

filed under § 2255(f)(3) and must be considered on the merits. This Court should

grant review and resolve this entrenched conflict.

CONCLUSION

For the foregoing reasons, this Court should grant the Petition for Writ of

Certiorari.

Respectfully submitted,

Anthony Martinez

Federal Public Defender for the Western

District of North Carolina

/s/ Joshua B. Carpenter____________________

Joshua B. Carpenter

Appellate Chief

OFFICE OF THE FEDERAL PUBLIC DEFENDER

WESTERN DISTRICT OF NORTH CAROLINA

One Page Avenue, Suite 210

Asheville, NC 28801

(828) 232-9992