Amicus Curiae Brief — Sandchase Cody, Petitioner v. United States

No. 21-6099

IN THE

Supreme Court of the United States

___________

SANDCHASE CODY,

v.

UNITED STATES OF AMERICA,

___________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the

Eleventh Circuit

___________

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AND DUE

PROCESS INSTITUTE AS AMICI CURIAE IN

SUPPORT OF PETITIONER

___________

DAVID M. PORTER

Co-Chair, Amicus Curiae

Committee

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

801 I St., 3rd Floor

Sacramento, CA 95814

COLLIN P. WEDEL*

SIDLEY AUSTIN LLP

555 West Fifth St.

Los Angeles, CA 90013

(213) 896-6000

cwedel@sidley.com

JEFFREY T. GREEN

GABRIEL SCHONFELD

SHANA-TARA O’TOOLE

SIDLEY AUSTIN LLP

DUE PROCESS INSTITUTE

1501 K St., N.W.

700 Penn. Ave., S.E. #560 Washington, D.C. 20005

Washington, D.C. 20003

Counsel for Amici Curiae

November 24, 2021

* Counsel of Record

TABLE OF CONTENTS

Page

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

ii

INTERESTS OF AMICI CURIAE .......................

1

INTRODUCTION AND SUMMARY OF ARGUMENT ...........................................................

2

ARGUMENT .........................................................

4

I. REVIEW IS NEEDED TO RESOLVE THE

SPLIT CREATED BY THE ELEVENTH

CIRCUIT’S MISINTERPRETATION OF

SECTIONS 2253 AND 2255 ........................

4

A. The certificate of appealability requirement should be interpreted in pari materia with 28 U.S.C. § 2255(d)—the grant

of appellate jurisdiction it was enacted to

limit ...........................................................

4

B. Under the habeas practice incorporated

by § 2255(d), a “proceeding under § 2255”

is over when the court resolves all claims

regarding the legality of custody ..............

7

II. THE ELEVENTH CIRCUIT’S DECISION

WOULD CLOSE THE COURTS OF APPEALS ENTIRELY TO DEFENDANTS

ENTITLED TO RESENTENCING BASED

ON JOHNSON V. UNITED STATES AND

UNITED STATES V. DAVIS ......................

13

CONCLUSION .....................................................

15

(i)

ii

CASES

TABLE OF AUTHORITIES

Page

Ajan v. United States, 731 F.3d 629 (6th Cir.

2013) ......................................................... 2, 12, 15

Andrews v. United States, 373 U.S. 334 (1963) ..

4

Banister v. Davis, 140 S. Ct. 1698 (2020) ..... passim

In re Bonner, 151 U.S. 242 (1894) .....................

8

Caraco Pharm. Labs., Ltd. v. Novo Nordisk

A/S, 566 U.S. 399 (2012) ...............................

5

Collins v. Miller, 252 U.S. 364 (1920) ...............

8

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612

(2018) ..............................................................

7

In re Franklin, 950 F.3d 909 (6th Cir. 2020) ....

13

Gonzalez v. Thaler, 565 U.S. 134 (2012) ........... 4, 6

In re Hammoud, 931 F.3d 1032 (11th Cir.

2019) ...............................................................

14

Johnson v. United States, 135 S. Ct. 2551

(2015) .............................................................. 3, 13

In re Jones, 830 F.3d 1295 (11th Cir. 2016) .....

14

King v. United States, 965 F.3d 60 (1st Cir.

2020) ...............................................................

13

Lopez v. Gonzales, 549 U.S. 47 (2006) ..............

6

Magwood v. Patterson, 561 U.S. 320 (2010) .....

9

Mahler v. Eby, 264 U.S. 32 (1924) ....................

8

In re Medley, 134 U.S. 160 (1890) ..................... 2, 9

Rust v. United States, 725 F.2d 1153 (8th Cir.

1984) ...............................................................

15

Sanders v. United States, 373 U.S. 1 (1963).....

10

Star Athletica, L.L.C. v. Varsity Brands, Inc.,

137 S. Ct. 1002 (2017) ....................................

5

In re Thomas, 988 F.3d 783 (4th Cir. 2021) .....

13

Troiano v. United States, 918 F.3d 1082 (9th

Cir. 2019) ........................................................

15

United States v. Bowen, 936 F.3d 1091 (10th

Cir. 2019) ........................................................

14

iii

TABLE OF AUTHORITIES—continued

Page

United States v. Cody, 998 F.3d 912 (11th Cir.

2021), petition for cert. filed, No. 21-6099

(U.S. Oct. 25, 2021) .................................... 2, 5, 11

United States v. Davis, 139 S. Ct. 2319

(2019) ......................................................... 3, 13, 14

United States v. Freeman, 44 U.S. (3 How.)

556 (1845) .......................................................

6

United States v. Hadden, 475 F.3d 652 (4th

Cir. 2007) ................................................... 2, 12, 15

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

9

United States v. Reece, 938 F.3d 630 (5th Cir.

2019) ...............................................................

13

United States v. Stewart, 311 U.S. 60 (1940) ...

6

United States v. Thomason, 940 F.3d 1166

(11th Cir. 2019), cert. denied, 140 S. Ct.

1213 (2020) .....................................................

15

Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303

(2006) ..............................................................

6

Welch v. United States, 136 S. Ct. 1257 (2016) ..

13

Wilkinson v. Dotson, 544 U.S. 74 (2005)...........

9

CONSTITUTION AND STATUTES

U.S. Const. pmbl. ...............................................

2

28 U.S.C. § 2253(a) ............................................ 4, 7

28 U.S.C. § 2253 (1995) .....................................

4

28 U.S.C. § 2253(c) ........................................ 2, 7, 14

28 U.S.C. § 2254 ................................................

7

28 U.S.C. § 2255(b) ....................................... 5, 10, 11

28 U.S.C. § 2255(d) ........................................ passim

28 U.S.C. § 2255 (1995) .....................................

4

Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. No. 104-132, tit. I, sec. 102,

§ 2253, 110 Stat. 1214, 1217-18 .....................

7

iv

TABLE OF AUTHORITIES—continued

SCHOLARLY AUTHORITY

Page

Conrad Kahn & Danli Song, A Touchy Subject:

The Eleventh Circuit’s Tug-of-War Over

What Constitutes Violent “Physical Force,”

72 U. MIAMI L. REV. 1130 (2018) ....................

14

INTERESTS OF AMICI CURIAE 1

Founded in 1958, the National Association of Criminal Defense Lawyers (“NACDL”) is a nonprofit voluntary professional bar association that works on behalf of criminal defense attorneys to ensure justice

and due process for those accused of crime or misconduct. It has a nationwide membership of many thousands of direct members, up to 40,000 with affiliate

members. NACDL’s members include private criminal defense lawyers, public defenders, military defense counsel, law professors, and judges. NACDL is

the only nationwide professional bar association for

public defenders and private criminal defense lawyers. NACDL is dedicated to advancing the proper,

efficient, and just administration of justice. NACDL

files numerous amicus briefs each year in this Court,

and other federal and state courts, seeking to provide

amicus assistance in cases that present issues of

broad importance to criminal defendants, criminal

defense lawyers, and the criminal justice system as a

whole.

Due Process Institute is a nonprofit, bipartisan,

public interest organization that works to honor, preserve, and restore procedural fairness in the criminal

legal system because due process is the guiding principle that underlies the Constitution’s solemn prom1 Pursuant to Supreme Court Rule 37.6, amici curiae state

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amici curiae, their

members, and counsel, made any monetary contribution

towards the preparation and submission of this brief. Pursuant

to Supreme Court Rule 37.2(a), Petitioner Sandchase Cody and

Respondent United States of America received timely notice of

amici curiae’s intent to file this brief and have consented to its

filing.

2

ises to “establish Justice” and to “secure the Blessings

of Liberty.” U.S. Const. pmbl. The organization takes

a strong interest in ensuring the existence of meaningful post-conviction remedies for constitutional

claims raised in criminal cases.

INTRODUCTION AND SUMMARY OF

ARGUMENT

This Court held more than a century ago that federal habeas proceedings end with an order deciding

whether custody is lawful—regardless of what proceedings might remain in the court whose judgment

is under review. In re Medley, 134 U.S. 160, 173-74

(1890). Congress declined to alter that rule when it

enacted 28 U.S.C. § 2255, and, for more than 70

years, federal law has authorized appeals from that

statutory proceeding “as from a final judgment on

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

§ 2255(d). Congress later limited that jurisdiction—

requiring a certificate of appealability (“COA”) in order to appeal from “[t]he final order in a proceeding

under section 2255,” id. § 2253(c)(1)(B)—but did not

amend the longstanding rule governing when such an

order became final.

Without addressing the relevant text or history, the

Eleventh Circuit held that, for purposes of the COA

statute, a “proceeding under section 2255” extends

beyond identifying a defect in custody—habeas’s historic outer limit—to also include the process of choosing an appropriate remedy. United States v. Cody,

998 F.3d 912, 915-16 (11th Cir. 2021), petition for

cert. filed, No. 21-6099 (U.S. Oct. 25, 2021). That

holding creates a clear and acknowledged conflict

with the Fourth and Sixth Circuits. See Ajan v. United States, 731 F.3d 629 (6th Cir. 2013); United States

v. Hadden, 475 F.3d 652 (4th Cir. 2007). This Court’s

3

review is needed to resolve that split and correct the

Eleventh Circuit’s misinterpretation of the statutes

governing federal post-conviction review.

Amici write to emphasize two points in particular.

First, the Eleventh Circuit’s analysis is wrong as a

matter of statutory text. The court of appeals erred

by reading the jurisdictional limits in the Antiterrorism and Effective Death Penalty Act (“AEDPA”) in

isolation from—rather than in pari materia with—

the jurisdictional grants that they were enacted to

restrain. Read together, sections 2255 and 2253

communicate Congress’s unambiguous intent that a

“proceeding under section 2255” has the same scope

as a traditional proceeding for habeas corpus. This

Court’s habeas precedents, in turn, make clear that

the scope of that proceeding does not include selecting

a remedy. That conclusion comes straight from the

text, and avoids the need to resort to any of the extratextual modes of construction that the Fourth and

Sixth Circuits used. The Court thus can and should

grant certiorari to resolve this case based on the text,

and to resolve the confusion in the lower courts.

Second, review is warranted because requiring a

COA prior to appellate review of a choice of remedy

under § 2255(b) would be the functional equivalent of

abolishing review altogether. COAs are available only

for constitutional claims, but the choice of postconviction remedy is an almost purely statutory procedure, and, as a practical matter, no COA could ever

issue to a defendant in petitioner’s position. Particularly in light of this Court’s decisions in Johnson v.

United States, 135 S. Ct. 2551 (2015), and United

States v. Davis, 139 S. Ct. 2319 (2019), review is warranted to assure that the hundreds or thousands of

prisoners with meritorious claims under those cases

can receive both the appeal to which they are enti-

4

tled, and the fullest opportunity to ensure that their

sentence is actually in accordance with the law.

ARGUMENT

I. REVIEW IS NEEDED TO RESOLVE THE

SPLIT CREATED BY THE ELEVENTH

CIRCUIT’S

MISINTERPRETATION

OF

SECTIONS 2253 AND 2255.

A. The certificate of appealability requirement should be interpreted in pari

materia with 28 U.S.C. § 2255(d)—the

grant of appellate jurisdiction it was

enacted to limit.

Orders under § 2255 are appealable under a special

jurisdictional provision included in the statute itself.

See Andrews v. United States, 373 U.S. 334, 338

(1963) (analyzing appellate jurisdiction under

§ 2255). 2 Now codified at § 2255(d), it provides that

2 In Gonzalez v. Thaler, 565 U.S. 134, 140 (2012), this Court

noted that § 2253(a) also provides a “general grant of

jurisdiction” to review district courts’ decisions on postconviction review. See 28 U.S.C. § 2253(a) (“In a habeas corpus

proceeding or a proceeding under section 2255 before a district

judge, the final order shall be subject to review, on appeal, by

the court of appeals for the circuit in which the proceeding is

held.”). Pre-AEDPA, Section 2253(a) did not explicitly apply to

§ 2255 appeals. See 28 U.S.C. § 2253 (1994). Rather, that

provision referred only to appeals from “a habeas corpus

proceeding.” Id.

There is no indication, however, that Congress intended in

AEDPA to impliedly repeal § 2255(d) and overturn decades of

case law (including this Court’s decision in Andrews) applying it

to determine the finality of orders under § 2255. Rather, it

appears Congress meant only to make express in § 2253(a) what

it had previously indicated by cross-reference. Compare 28

U.S.C. § 2253 (1995) (providing for appeal “[i]n a habeas corpus

proceeding”), with id. § 2255 (providing for appeal “as from a

5

“[a]n appeal may be taken to the court of appeals

from the order entered on the motion as from a final

judgment on application for a writ of habeas corpus.”

28 U.S.C. § 2255(d). When AEDPA withdrew the circuit courts’ jurisdiction over appeals without a COA,

it was § 2255(d) that provided the jurisdiction that

AEDPA was curtailing.

The Eleventh Circuit’s analysis ignored that preAEDPA jurisdictional backdrop. It instead interpreted § 2253’s jurisdictional language exclusively by reference to the second sentence of § 2255(b), which provides the substantive standards that courts apply on

collateral review of a federal criminal judgment. See

Cody, 998 F.3d at 915-16; 28 U.S.C. § 2255(b) (defining which defects in a judgment or sentence are cognizable, and what relief is available, in a motion under § 2255).

That myopic approach was the wrong one.

“[I]nterpretation of a phrase of uncertain reach is not

confined to a single sentence when the text of the

whole statute gives instruction as to its meaning.”

Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S.

Ct. 1002, 1010 (2017) (alteration in original) (quoting

Maracich v. Spears, 570 U.S. 48, 65 (2013)); see also

Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566

U.S. 399, 412 (2012) (“Statutory interpretation focuses on ‘the language itself, the specific context in

which that language is used, and the broader context

of the statute as a whole.’” (quoting Robinson v. Shell

Oil Co., 519 U.S. 337, 341 (1997))).

final judgment on application for a writ of habeas corpus”).

“When Congress ‘intends to effect a change’ in existing law—in

particular, a holding of this Court—it usually provides a clear

statement of that objective.” Banister v. Davis, 140 S. Ct. 1698,

1707 (2020).

6

This Court’s “interpretive regime reads whole sections of a statute together to fix on the meaning of

any one of them, and the last thing this approach

would do,” see Lopez v. Gonzales, 549 U.S. 47, 56

(2006), is interpret for jurisdictional purposes the

phrase “final order in a [§ 2255] proceeding” without

considering the jurisdictional language found in

§ 2255 itself. Put another way, the Eleventh Circuit’s

failure to account for § 2255(d) disregarded the “established rule of law, that all acts in pari materia are

to be taken together, as if they were one law,” such

that “[i]f a thing contained in a subsequent statute,

be within the reason of a former statute, it shall be

taken to be within the meaning of [the earlier enactment].” United States v. Freeman, 44 U.S. (3 How.)

556, 564-65 (1845); see also Wachovia Bank, N.A. v.

Schmidt, 546 U.S. 303, 315-16 (2006).

That § 2255(d)’s grant of jurisdiction and § 2253’s

corresponding jurisdictional constraint “[should be

read] in pari materia is plain.” United States v. Stewart, 311 U.S. 60, 64-65 (1940) (statutes were in pari

materia when they “deal[t] with precisely the same

subject matter”); cf. Wachovia Bank, 546 U.S. at 31516 (holding that “venue and subject-matter jurisdiction are not concepts of the same order” for purposes

of in pari materia canon). Indeed, this Court has previously held that AEDPA’s limitations on appellate

review should be interpreted “against the backdrop”

of the jurisdictional grants they limit. Gonzalez, 565

U.S. at 142; cf. Banister v. Davis, 140 S. Ct. 1698,

1707 (2020) (reviewing traditional practice regarding

second or successive petitions, and interpreting current statute in light of fact that “Congress passed

AEDPA against this legal backdrop”).

7

B. Under the habeas practice incorporated

by § 2255(d), a “proceeding under § 2255”

is over when the court resolves all

claims regarding the legality of custody.

1. When the statute is properly read as a whole,

the answer to the question presented is clear. Section

2253 requires a COA before an appeal is allowed from

“the final order” in either a federal prisoner’s “proceeding under section 2255,” or a state prisoner’s

“habeas corpus proceeding.” 28 U.S.C. § 2253(c)(1)(A)(B) (emphasis added). The same section limits appellate review of both types of post-conviction proceeding

to only “the final order.” Id. § 2253(a) (emphasis added).

On habeas review under 28 U.S.C. § 2254, where

any order granting relief will ultimately require action by a separate state court, identifying the final

federal order is straightforward. Petitioner here presents the question of how to draw that line in a

§ 2255 proceeding—where a single district judge determines custody’s legality and then identifies and

implements an appropriate remedy.

Section 2255(d) provides the answer. To begin with,

it authorizes appeals from “the order entered on the

[§ 2255] motion.” Id. § 2255(d) (emphasis added). Because Congress left that language in place when it

amended § 2253(a) to expressly limit appellate review

of a § 2255 proceeding to “the final order,” id.

§ 2253(a); see Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, tit. I, sec.

102, § 2253, 110 Stat. 1214, 1217-18 (amending

§ 2253(a)); see also supra n. 2, it must have understood the appealable “order entered on the motion” in

§ 2255(d) as equivalent to the appealable “final order”

in § 2253(a)—and therefore the “final order” subject

to the COA requirement in § 2253(c)(1)(B), see Epic

8

Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1619 (2018) (“It

is this Court’s duty to interpret Congress’s statutes

as a harmonious whole rather than at war with one

another.”).

That equivalence is useful here because, unlike

§ 2253, the text of § 2255(d) makes clear how Congress intended to define the final order entered in a

§ 2255 proceeding—as equivalent to “a final judgment

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

§ 2255(d).

2. That statutory command is sufficient to resolve

the question presented, and the Court should grant

certiorari in order to do so. A “proceeding under

§ 2255” is concluded once the district court determines the legality of the movant’s custody. All subsequent proceedings—including the choice of remedy—

are necessarily part of the criminal docket, subject to

appeal as of right.

By the time of § 2255’s enactment, it was wellestablished that a habeas court’s powers were limited

to determining whether the petitioner was legally

confined and, if he was not, ordering his release. Determining the extent to which the defective judgment

could be corrected, or the defendant lawfully retried,

was a matter for whichever authority properly had

jurisdiction of the underlying case. See, e.g., Mahler

v. Eby, 264 U.S. 32, 46 (1924) (granting writ, but delaying alien’s discharge from detention until the Secretary of Labor chose between reopening proceedings

and correcting his defective ruling on the existing

record); Collins v. Miller, 252 U.S. 364, 368-70 (1920)

(where habeas court continued to assert jurisdiction

over the prisoner, and had not actually ordered his

discharge—conditionally or otherwise—an order purporting to “grant” the writ and order a new hearing

before a court commissioner was non-final); In re

9

Bonner, 151 U.S. 242, 259-62 (1894) (“[W]here the

punishment imposed, in the mode, extent, or place of

its execution, has exceeded the law, [the habeas court

may] have it corrected by calling the attention of the

[original] court to such excess. . . . [The habeas court]

might well delay the discharge of the petitioner . . . to

have him taken before the court where the judgment

was rendered, that the defects . . . in that judgment

may be corrected [by that original court].”); In re

Medley, 134 U.S. at 173-74 (“[U]nder the writ of habeas corpus we cannot do anything else than discharge the prisoner from the wrongful confinement . . . , and it is neither our inclination nor our duty to decide what the [state] court may or what it may

not do in regard to the case as it stands.”).

This Court’s decisions following § 2255 are in accord. See, e.g., Magwood v. Patterson, 561 U.S. 320,

332-33 (2010) (“A [post-conviction] petitioner is applying for something: His petition ‘seeks invalidation (in

whole or in part) of the judgment authorizing the

prisoner’s confinement.’”); Wilkinson v. Dotson, 544

U.S. 74, 83 (2005) (“[T]he fact that the State may

seek a new judgment (through a new trial or a new

sentencing proceeding) is beside the point.”).

In addition to “historical habeas doctrine and practice,” defining the final order in a § 2255 proceeding

as equivalent to a final habeas order is also consistent with “AEDPA’s own purposes.” Banister, 140

S. Ct. at 1705-06 (identifying sources of guidance in

construing AEDPA). Section 2255 was intended primarily to resolve “practical difficulties” arising when

prisoners filed traditional habeas applications in

their districts of confinement. United States v. Hayman, 342 U.S. 205, 210-19 (1952) (explaining problems that arose when habeas claims were concentrated in districts containing federal prisons, far from the

10

evidence and witnesses for many petitioners). The

purpose of the statute was “to provide in the sentencing court a remedy exactly commensurate with that

which had previously been available by habeas.”

Sanders v. United States, 373 U.S. 1, 13-14 (1963)

(emphasis added). As this Court has explained in a

related context, “Congress passed AEDPA against

this legal backdrop, and did nothing to change it”

with respect to the question presented here. Banister,

140 S. Ct. at 1707. “AEDPA of course made the limits

on entertaining [appeals from final § 2255 orders]

more stringent than before. But the statute did not

redefine what qualifies as a [final order] . . . .” Id. (citation omitted).

3. Construing “a proceeding under section 2255”

to include only what would be necessary to a final

habeas judgment is also consistent with the text of

§ 2255(b). Two substantive consequences follow from

a successful § 2255 motion. First, “the court shall vacate and set the judgment aside.” 28 U.S.C. § 2255(b).

That is all the relief—invalidating a judgment under

which the prisoner cannot be lawfully confined—that

would be available in a traditional habeas proceeding.

Granting it therefore concludes the “proceeding under

section 2255.” Second, the court chooses “as may appear appropriate” one of four remedial options that

the statute allows—“discharge the prisoner,” “resentence him,” “grant a new trial,” or “correct the sentence.” 28 U.S.C. § 2255(b). In a traditional habeas

proceeding, the choice among those remedies would

be firmly committed to the original tribunal. That

choice, and all that follows it, is part of the underlying criminal case—not the § 2255 proceeding. See supra Part B.2.

The text of § 2255(b) itself divides along that same

line. It provides that, if a movant prevails on the mer-

11

its, “the court shall vacate and set the judgment aside

and shall discharge the prisoner or resentence him

or grant a new trial or correct the sentence as may

appear appropriate.” 28 U.S.C. § 2255(b) (emphasis

added). That provision is structured as two clauses,

separated by a coordinating “and” and sharing a subject (“the court”), but each otherwise standing on its

own. The imperative “shall” is repeated on either side

of the central conjunction, with each instance modifying a separate set of infinitive verbs, and the prepositional phrase “as may be appropriate” modifying only

the second clause. Not accidentally, that grammatical

divide—between a post-conviction court’s duty to vacate an unlawful judgment and the original court’s

discretion in whether and how to fashion a new one—

mirrors the habeas remedies Congress meant to reproduce across § 2255 as a whole.

The Eleventh Circuit failed to account for that context. Instead it isolated the final two clauses of

§ 2255(b), reasoning that because they appear in

§ 2255, they must be part of the “proceeding under

[that] section” for purposes of appellate jurisdiction

under § 2253. Cody, 998 F.3d at 915-16. Section

2255(d) expressly instructs, however, that “the order

entered on the [§ 2255] motion” is appealable “as

from a final [habeas] judgment.” 28 U.S.C. § 2255(d).

Put simply, the text of § 2255 itself directs that appellate jurisdiction be measured against historic practice

rather than the precise language of the provision. See

also Banister, 140 S. Ct. at 1705-06 (noting that prior

practice is informative when interpreting “term[s] of

art” in AEDPA that are “not self-defining”). The decision below disregarded that plain command and created a circuit split in the process. Certiorari is warranted to resolve it.

12

4. There is a particularly acute need for this

Court’s review because on the other side of that split,

the Fourth and Sixth Circuits reached the right result for the wrong reasons. Rather than relying on

the language and history of the statutes at issue,

each court took an extratextual approach to sections

2253 and 2255 that is not a tenable model for other

circuits to follow.

In Hadden, 475 F.3d 652, the Fourth Circuit initially observed that the text authorizing courts to either

“resentence” a successful movant or “correct [his] sentence” appears in § 2255(b), id. at 662-63, but that

the most literal reading of that text in isolation—one

that included resentencing and correction within the

§ 2255 proceeding itself—would “prevent the defendant from ever obtaining direct appellate review of his

new sentence,” id. at 663-64. But rather than look to

the surrounding statutory language for guidance, the

court developed its own “somewhat novel” interpretation with no apparent textual roots. Id. at 664. It concluded that “resentencing or correction of [a] prisoner’s sentence . . . is a hybrid order that is both part of

the petitioner’s § 2255 proceeding and part of his

criminal case,” and determined based on its own

sense of statutory purpose and policy that a district

court’s choice of remedy fell on the criminal side of

that line. Id. at 664-65.

In Ajan, 731 F.3d 629, the Sixth Circuit followed

essentially the same extratextual approach. Citing

the Fourth Circuit’s decision in Hadden, and relying

on the fact that the defendant had only appealed from

his amended criminal judgment, it held that a challenge to the district court’s choice of remedy was an

“appeal[] [of] a new criminal sentence” not requiring

a COA. Id. at 631-32.

13

There is a clear conflict in the courts of appeals.

Even the circuits to reach the correct result have

come unmoored from crucial statutory text and history. This Court’s review is needed.

II. THE ELEVENTH CIRCUIT’S DECISION

WOULD CLOSE THE COURTS OF APPEALS ENTIRELY TO DEFENDANTS ENTITLED TO RESENTENCING BASED ON

JOHNSON V. UNITED STATES AND UNITED STATES V. DAVIS.

Certiorari is especially warranted because, in addition to being textually wrong, the rule adopted below—requiring a COA to review crucial decisions of a

type that will rarely if ever generate constitutional

claims—has intolerable practical effects that must be

remedied. To wit, the Eleventh Circuit’s rule effectively eliminates appellate review of decisions denying requests for resentencing based on Johnson, 135

S. Ct. 2551, and Davis, 139 S. Ct. 2319.

In both those cases, the Court held unconstitutionally vague a residual clause under which thousands

of defendants, over several decades, had been sentenced to draconian prison sentences based on an arbitrary determination that they had committed a categorically violent offense. See Johnson, 135 S. Ct. at

2555-56, 2563 (invalidating 18 U.S.C. § 924(e)(2)(B));

Davis, 139 S. Ct. at 2323-24 (invalidating 18 U.S.C.

§ 924(c)(3)). This Court subsequently held that Johnson announced a substantive rule applicable on collateral review. Welch v. United States, 136 S. Ct.

1257 (2016). The First, Fourth, Fifth, Sixth, Tenth,

and Eleventh Circuits have extended that conclusion

to Davis. See King v. United States, 965 F.3d 60 (1st

Cir. 2020); In re Thomas, 988 F.3d 783 (4th Cir.

2021); United States v. Reece, 938 F.3d 630 (5th Cir.

2019); In re Franklin, 950 F.3d 909 (6th Cir. 2020)

14

(per curiam); United States v. Bowen, 936 F.3d 1091

(10th Cir. 2019); In re Hammoud, 931 F.3d 1032

(11th Cir. 2019).

Petitioner is merely one of numerous Johnson defendants still percolating through the federal courts

years after that decision, whose cases are quickly being

joined by many more under Davis. See, e.g., supra at

13-14; see also Davis, 139 S. Ct. at 2333 (noting that

18 U.S.C. § 924(c)(3)(B) was “used in ‘tens of thousands

of federal prosecutions’” over more than three decades

between enactment and invalidation). Indeed, in the

months following this Court’s determination that

Johnson applied on collateral review, the Eleventh

Circuit alone received nearly 2,000 applications for

leave to file second or successive petitions based on

that decision—a figure including only the fraction of

prisoners convicted in that circuit who had previously

sought § 2255 relief. See In re Jones, 830 F.3d 1295,

1301-02 (11th Cir. 2016) (Rosenbaum and J. Pryor,

JJ., concurring in result); see also Conrad Kahn &

Danli Song, A Touchy Subject: The Eleventh Circuit’s

Tug-of-War Over What Constitutes Violent “Physical

Force,” 72 U. MIAMI L. REV. 1130, 1141-46 (2018) (describing flood of § 2255 petitions filed in Eleventh

Circuit under Johnson). The upshot is that the question presented here is likely to recur hundreds—if not

thousands—of times over the coming years, as § 2255

petitioners seek resentencing under Johnson and Davis but receive bare corrections instead.

Absent intervention by this Court, appeals from

many such decisions will, for practical purposes, be

abolished in the Eleventh Circuit. That is so because,

by statute, a COA is available only for constitutional

claims. 28 U.S.C. § 2253(c)(2). When a district court

vacates one count of a multi-count conviction, however, Eleventh Circuit law generally treats the discre-

15

tionary decision not to further modify the original

sentence as a purely statutory one. See United States

v. Thomason, 940 F.3d 1166, 1172-73 (11th Cir. 2019)

(holding that such a modification is not “critical

stage” for which due process requires a hearing), cert.

denied, 140 S. Ct. 1213 (2020). Other courts of appeals have reached the same conclusion. See, e.g.,

Troiano v. United States, 918 F.3d 1082, 1086-87 (9th

Cir. 2019); Ajan, 731 F.3d at 633-34; Hadden, 475

F.3d at 668-69; Rust v. United States, 725 F.2d 1153,

1154 (8th Cir. 1984) (per curiam).

The ruling below, if allowed to stand, would render

crucial remedial decisions unreviewable and leave

prisoners unable to challenge even gross abuses of discretion. That cannot be what Congress intended, and

is not an injustice this Court should allow to persist.

CONCLUSION

The petition should be granted.

Respectfully submitted,

DAVID M. PORTER

Co-Chair, Amicus Curiae

Committee

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

801 I St., 3rd Floor

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COLLIN P. WEDEL*

SIDLEY AUSTIN LLP

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Los Angeles, CA 90013

(213) 896-6000

cwedel@sidley.com

JEFFREY T. GREEN

GABRIEL SCHONFELD

SHANA-TARA O’TOOLE

SIDLEY AUSTIN LLP

DUE PROCESS INSTITUTE

1501 K St., N.W.

700 Penn. Ave., S.E. #560 Washington, D.C. 20005

Washington, D.C. 20003

Counsel for Amici Curiae

November 24, 2021

* Counsel of Record