Opposition Brief — Dylann Storm Roof, Petitioner v. United States

Supreme Court briefAug 31, 2022

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No. 21-7234

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

DYLANN STORM ROOF, PETITIONER

v.

UNITED STATES OF AMERICA

(CAPITAL CASE)

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KRISTEN CLARKE

KENNETH A. POLITE, JR.

Assistant Attorneys General

BONNIE I. ROBIN-VERGEER

BRANT S. LEVINE

ANN O’CONNELL ADAMS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

CAPITAL CASE

QUESTIONS PRESENTED

1.

Whether

assistance

of

petitioner’s

counsel

Sixth

entitled

Amendment

him

to

right

override

to

the

counsel’s

determinations about the mitigation evidence to present during the

penalty phase of his capital trial.

2.

Whether 18 U.S.C. 247(a)(2), which prohibits intentional

obstruction

of

the

free

exercise

of

religious

beliefs

in

circumstances that are “in or affect[] interstate or foreign

commerce,” 18 U.S.C. 247(b), exceeds Congress’s Commerce Clause

power as applied to petitioner’s mass shooting of worshippers in

a

Charleston

church,

which

he

planned

using

the

internet,

propagandized on a foreign-hosted website, and carried out with

instruments that traveled in interstate commerce.

3.

willfully

Whether 18 U.S.C. 249(a)(1), which makes it a crime

to

cause

bodily

injury

“because

of

the

actual

or

perceived race, color, religion, or national origin of any person,”

is a facially valid exercise of Congress’s power under Section 2

of the Thirteenth Amendment.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 21-7234

DYLANN STORM ROOF, PETITIONER

v.

UNITED STATES OF AMERICA

(CAPITAL CASE)

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-94a) is

reported at 10 F.4th 314.

memorializing

unpublished.

a

pretrial

The

opinion

An opinion of the district court

ruling

of

(Pet.

the

App.

district

121a-126a)

court

is

denying

petitioner’s motion to dismiss (Pet. App. 128a-150a) is reported

at 225 F. Supp. 3d 438.

The opinion of the district court denying

petitioner’s motion for a new trial or a judgment of acquittal

(Pet. App. 151a-171a) is reported at 252 F. Supp. 3d 469.

2

JURISDICTION

The judgment of the court of appeals was entered on August

25, 2021.

A petition for rehearing was denied on September 27,

2021 (Pet. App. 175a-176a).

On December 15, 2021, the Chief

Justice extended the time within which to file a petition for a

writ of certiorari to and including February 24, 2022, and the

petition was filed on that date.

The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the District of South Carolina, petitioner was convicted on

nine counts of racially motivated hate crimes resulting in death,

in violation of 18 U.S.C. 249(a)(1); three counts of racially

motivated hate crimes involving an attempt to kill, in violation

of 18 U.S.C. 249(a)(1); nine counts of obstructing religious

exercise resulting in death, in violation of 18 U.S.C. 247(a)(2)

(2012)

and

18

U.S.C.

247(d)(1);

three

counts

of

obstructing

religious exercise, involving an attempt to kill and use of a

dangerous weapon, in violation of 18 U.S.C. 247(a)(2) (2012), 18

U.S.C. 247(d)(1), and (d)(3); and nine counts of causing death by

murder by using a firearm to commit murder during and in relation

to a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A),

(j)(1),

and

18

U.S.C.

924(c)(1)(C)

Indictment 4-10; Judgment 1.

(2012

&

Supp.

II

2015).

3

The district court sentenced petitioner to death for each

violation of Section 247 resulting in death and for each violation

of Section 924 resulting in death, and to life imprisonment on all

other counts.

Judgment 2-3.

The court of appeals affirmed.

Pet.

App. 1a-94a.

1.

On June 17, 2015, 12 black parishioners and church

leaders of the historic Emanuel African Methodist Episcopal Church

(Mother Emanuel) in Charleston, South Carolina, gathered in the

church’s Fellowship Hall for their weekly Bible study.

19a-20a.

Pet. App.

At 8:16 p.m., petitioner entered the church carrying a

tactical bag that concealed a Glock .45 semi-automatic handgun and

eight loaded magazines.

Id. at 19a-20a, 69a.

The parishioners

welcomed petitioner, handing him a Bible and a study sheet.

Id.

at 20a.

Petitioner sat with the parishioners for about 45 minutes.

Pet. App. 20a.

Then, as the parishioners rose and shut their eyes

for a closing prayer, petitioner took out his gun and started

shooting

them.

Ibid.

He

reloaded

multiple

times

parishioners dove under tables to avoid the gunfire.

firing

approximately

Sheppard,

who

was

74

bullets,

praying

aloud.

petitioner

Ibid.;

as

the

Ibid.

After

approached

Polly

C.A.

5017.

App.

Petitioner told Sheppard to “shut up” and asked if he had shot her

yet.

Ibid.

When she responded “no,” petitioner said, “I’m not

4

going to.

I’m going to leave you here to tell the story.”

C.A.

App. 5017; see Pet. App. 20a.

Petitioner left Mother Emanuel around 9:06 p.m.

20a.

Pet. App.

Seven of the parishioners were dead when police arrived, and

another two victims died soon after.

Ibid.

Reverend Sharonda

Coleman-Singleton, Cynthia Hurd, Susie Jackson, Ethel Lee Lance,

Reverend DePayne Middleton-Doctor, Reverend Clementa Pinckney,

Tywanza Sanders, Reverend Daniel Simmons, Sr., and Reverend Myra

Thompson were all killed by petitioner’s shooting spree.

Ibid.

Sheppard survived, as did Felicia Sanders and her granddaughter

K.M., both of whom had played dead under a table.

C.A. App. 3700-

3701, 3751-3752, 3761-3763, 5017; Pet. App. 20a, 131a.

Officers stopped petitioner’s car the next morning in Shelby,

North Carolina.

Pet. App. 20a.

FBI agents and confessed.

He agreed to an interview with

Ibid.

Petitioner referred to himself

as a “white nationalist” and told agents he committed the crime

because “black people are killing white people every day” and

“rap[ing] white women.”

Ibid. (citation omitted; brackets in

original).

that

He

admitted

he

was

trying

to

agitate

race

relations, in the hope that it could potentially lead to a race

war.

Ibid.

To plan his crime, petitioner used the internet to research

South

Carolina’s

black

churches,

because of its historic importance.

settling

on

Mother

Emanuel

Pet. App. 20a, 69a.

He also

5

used his home telephone to call Mother Emanuel and a GPS device to

navigate to the area surrounding Mother Emanuel for repeated

surveillance trips.

Id. at 69a.

He purchased and used a gun,

ammunition, a tactical pouch, and magazines that had traveled in

interstate or foreign commerce.

Ibid.

On the day of the crime,

petitioner posted writings on his website, hosted on a foreign

internet

server,

racist ideology.

foreshadowing

his

Id. at 21a, 69a.

attack

and

explaining

his

He then used a GPS device and

an interstate highway to reach Mother Emanuel from his home in

Columbia, South Carolina.

2.

Id. at 69a.

A grand jury in the District of South Carolina returned

an indictment charging petitioner with nine counts of racially

motivated hate crimes resulting in death, in violation of 18 U.S.C.

249(a)(1);

three

counts

of

racially

motivated

hate

crimes

involving an attempt to kill, in violation of 18 U.S.C. 249(a)(1);

nine counts of obstructing religious exercise resulting in death,

in violation of 18 U.S.C. 247(a)(2) (2012) and 18 U.S.C. 247(d)(1);

three

counts

of

obstructing

religious

exercise,

involving

an

attempt to kill and use of a dangerous weapon, in violation of 18

U.S.C. 247(a)(2) (2012), 18 U.S.C. 247(d)(1), and (d)(3); and nine

counts of causing death by murder by using a firearm to commit

murder during and in relation to a crime of violence, in violation

of 18 U.S.C. 924(c)(1)(A), (j)(1), and 18 U.S.C. 924(c)(1)(C) (2012

& Supp. II 2015).

Indictment 4-10.

The government gave notice of

6

its intent to seek capital punishment and declined petitioner’s

offer to plead guilty in exchange for life imprisonment.

Pet.

App. 21a.

Petitioner moved to dismiss the indictment on the theories

that Section 247 exceeds Congress’s authority under the Commerce

Clause both on its face and as applied and that Section 249(a)(1)

exceeds Congress’s power under the Thirteenth Amendment.

App. 131a.

The district court denied the motion.

See Pet.

Id. at 132a-

146a.

3.

As

trial

approached,

petitioner

expressed

attorneys his goal of avoiding capital punishment.

662.

to

his

C.A. App. 574,

And during a competency evaluation, he told the court’s

examiner that he wanted to stay alive as long as possible and that

part of his strategy was to insist on a trial that would create

appellate issues and thereby “prolong

* * *

his life span.”

Id.

at 5563; see id. at 5545.

Defense

counsel

explored

various

aspects

of

mitigation,

including petitioner’s medical history and mental health.

App. 537-546.

C.A.

But petitioner became upset when he learned that

his lawyers planned to call an autism expert during the trial’s

penalty phase.

Pet. App. 22a.

Petitioner wrote a letter to the

prosecution stating, “what my lawyers are planning to say in my

defense

is

permission.”

a

lie

and

will

be

said

without

my

Id. at 22a, 35a (quoting C.A. App. 587).

consent

or

7

At defense counsel’s request, the district court held an ex

parte hearing to address the situation.

C.A.

App.

fundamental

573-574.

Counsel

issues

entrusted

See Pet. App. 22a, 35a;

argued

that

to

defendant

a

aside

from

certain

concerning

the

objectives of the representation -- such as whether to plead

guilty, waive a jury trial, testify in his own defense, or take an

appeal -- counsel has full authority to manage the trial, including

decisions about what evidence to introduce at capital sentencing.

Pet. App. 35a; C.A. App. 579-580.

In response to questions from

the court, petitioner stated that he would “rather die than be

labeled

autistic”

and

that

mental-health

mitigation

“discredits the reason why [he] did the crime.”

23a, 36a, 106a-109a (citation omitted).

evidence

Pet. App. 22a-

Defense counsel stated

that they had considered petitioner’s perspective but determined,

in their professional judgment, that presenting the evidence was

in petitioner’s best interests because it was his “only sentencing

defense.”

Id. at 23a, 36a; C.A. App. 833.

The district court agreed with defense counsel that counsel’s

authority to make strategic judgments includes the authority to

make

judgments

sentencing.

about

the

evidence

to

introduce

at

capital

Pet. App. 36a, 121a-126a; C.A. App. 1741-1743.

The

court explained that the Sixth Amendment does not give a defendant

the

right

“to

instruct

his

counsel

not

to

present

certain

mitigation evidence in his capital sentencing proceeding, when

8

counsel believe they have a professional obligation to present

such evidence.”

Pet. App. 124a; see id. at 126a.

After the

district court’s ruling, petitioner invoked his Sixth Amendment

right to self-representation under Faretta v. California, 422 U.S.

806 (1975).

Pet. App. 36a.

The court granted that request and

appointed petitioner’s lawyers as standby counsel.

37a.

Id. at 36a-

Petitioner represented himself during voir dire, then asked

to be represented by counsel for the guilt phase, which the court

allowed.

4.

Id. at 37a-38a.

The jury found petitioner guilty on all counts.

App. 22a; Judgment 1.

Pet.

After the verdict, petitioner advised the

court that he wished to represent himself during the penalty phase.

Pet.

App.

38a;

C.A.

App.

5180-5181.

The

court

accepted

petitioner’s waiver of the right to counsel and reappointed his

lawyers as standby counsel.

C.A. App. 5181.

Petitioner did not

cross-examine any witnesses or present any evidence during the

penalty phase, but he delivered an opening statement and closing

argument.

Pet. 8; C.A. App. 5793-5794, 6712-6714.

The jury found four independent gateway factors that each

made petitioner eligible for capital punishment, further found

that aggravating factors outweighed mitigating factors, and voted

unanimously for a capital sentence on each relevant count.

C.A.

App.

such

6793-6794,

6806.

The

district

court

then

imposed

sentences for the violations of Sections 247 and 924(c) resulting

9

in death, and imposed sentences of life imprisonment for the

Section

249(a)(1)

violations

and

involving an attempted killing.

the

Section

247

violations

Judgment 2-3; Pet. App. 56a.

5.

The court of appeals affirmed.

Pet. App. 1a-94a.

a.

Petitioner contended that the Sixth Amendment entitled

him to override his attorneys’ decision to present evidence of

mental health in mitigation and that his waiver of counsel was

invalid because it was predicated on the district court’s contrary

determination.

Pet. App. 38a.

He relied principally on this

Court’s decision in McCoy v. Louisiana, 138 S. Ct. 1500 (2018),

which held that “a defendant has the right to insist that counsel

refrain from admitting guilt, even when counsel’s experience[]based view is that confessing guilt offers the defendant the best

chance to avoid the death penalty.”

McCoy

explained

that

a

Id. at 1505.

counseled

defendant

may

“objectives” of his defense, including “the objective

set

the

* * *

to

assert innocence,” and that defense counsel is responsible for

“[t]rial management” and “strategic choices,” including “‘what

arguments to pursue.’”

138 S. Ct. at 1508 (citation omitted).

The court of appeals rejected petitioner’s assertion that a desire

not to be portrayed as autistic or mentally ill is an “objective”

of the defense, explaining that the “presentation of mental health

mitigation evidence” is “‘a classic tactical decision left to

counsel . . . even when the client disagrees.’”

Pet. App. 40a

10

(citation omitted).

The court observed that McCoy “does not

subvert the long-established distinction between an objective and

tactics” and that petitioner’s interpretation of McCoy “would

leave

little

remaining

in

the

tactics

category

by

defendants to define their objectives too specifically.”

allowing

Id. at

41a.

b.

18

Petitioner separately challenged his convictions under

U.S.C.

247(a)(2)

(2012)

and

18

U.S.C.

247(d)(1),

for

intentionally obstructing persons in the free exercise of their

religious beliefs by force and threat of force, as exceeding

Congress’s power under the Commerce Clause.

court

of

appeals

rejected

his

facial

Pet. App. 68a.

claim,

pointing

to

The

the

statute’s jurisdictional element requiring proof that “the offense

is in or affects interstate or foreign commerce,” id. at 70a

(quoting 18 U.S.C. 247(b)), and upheld the constitutionality of

the statute as applied, id. at 72a-75a.

The court of appeals pointed to this Court’s instruction in

United States v. Lopez, 514 U.S. 549 (1995), that Congress’s

commerce

power

“extends

to

regulating

instrumentalities

of

interstate commerce even when the threat of their misuse ‘may come

only from intrastate activities.’”

514 U.S. at 558).

Pet. App. 74a (quoting Lopez,

It observed that petitioner had used the

internet, a channel and instrumentality of interstate commerce, to

“conduct[] internet research to pick his church target and to

11

maximize the impact of his attack,” and “to spread his racist

ideology” and “advertise” the “rampage that he would undertake.”

Id. at 74a.

The court found that internet usage to be “closely

linked, both in purpose and temporal proximity,” to his crimes.

Ibid.

And it further found that even if petitioner’s internet use

alone did not bring his conduct within the scope of Congress’s

authority, his crime was marked by “multiple other connections to

the means of commerce,” including his use of a telephone to call

Mother Emanuel, a GPS device to navigate to the church, and an

interstate highway within South Carolina to travel to the church,

including on the day of the attack.

Id. at 75a.

The court did

not reach the government’s separate argument that petitioner’s use

of a gun, ammunition, and tactical pouch that had previously moved

in interstate commerce independently established the requisite

nexus with commerce.

c.

Id. at 75a n.46.

Petitioner additionally challenged his convictions under

Section 249(a)(1), for willfully causing bodily injury to his

victims based on their race, on the theory that the statute exceeds

Congress’s enforcement authority under the Thirteenth Amendment.

Pet. App. 78a.

issue,

the

Like every other court of appeals to consider the

court

of

appeals

here

recognized

authority under that Amendment to “enforce

* * *

that

Congress’s

by appropriate

legislation” the constitutional ban on “slavery [and] involuntary

servitude

* * *

within the United States,” U.S. Const. Amend.

12

XIII, includes the authority to enact Section 249(a)(1).

Pet.

App. 79a-80a & n.52.

The court of appeals pointed to this Court’s recognition in

Jones v.

Alfred

H.

Mayer

Co.,

392

U.S.

409 (1968), that the

Constitution gives “Congress not only the authority to abolish

slavery, but also the ‘power to pass all laws necessary and proper

for abolishing all badges and incidents of slavery in the United

States.’”

Pet. App. 80a (quoting Jones, 392 U.S. at 439).

The

court explained that Congress had “ample grounds for finding that

‘[s]lavery and involuntary servitude were enforced . . . through

widespread public and private violence directed at persons because

of their race, color, or ancestry,’” such that “‘eliminating

racially motivated violence is an important means of eliminating,

to the extent possible, the badges, incidents, and relics of

slavery and involuntary servitude.’”

Ibid. (quoting 34 U.S.C.

30501(7)) (brackets in original).

The

court

of

appeals

rejected

petitioner’s argument that

Section 249(a)(1) should be evaluated pursuant to the tests for

enforcement

legislation

under

the

Fourteenth

and

Fifteenth

Amendments, as set forth in City of Boerne v. Flores, 521 U.S. 507

(1997), and Shelby County v. Holder, 570 U.S. 529 (2013).

App. 80a-82a.

See Pet.

The court observed that neither decision mentions the

Thirteenth Amendment or Jones, and “neither discusses Congress’s

13

power to identify and legislate against the badges and incidents of

slavery.”

Id. at 82a.

ARGUMENT

Petitioner renews his contentions that his waiver of the right

to counsel was invalid because the district court misadvised him

as to whether he could control counsel’s presentation of mitigation

evidence (Pet. 10-21); that 18 U.S.C. 247(a)(2), as applied to his

planning, execution, and proselytization of his shooting spree,

exceeds Congress’s Commerce Clause power (Pet. 21-32); and that 18

U.S.C. 249(a)(1) is facially unconstitutional (Pet. 32-40).

The

court of appeals correctly rejected those contentions, and its

decision does not implicate any conflict among the lower courts

warranting

this

Court’s

intervention.

Further

review

is

unwarranted.

1.

The

court

of

appeals

correctly

determined

that

petitioner was not entitled to enjoy the assistance of counsel

while directing presentation of mitigation evidence.

on

that

question

in

the

lower

courts

is

far

Any conflict

narrower

than

petitioner suggests and does not warrant this Court’s review.

a.

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right

the Assistance of Counsel for his defence.”

VI.

by

* * *

to have

U.S. Const. Amend.

Although a criminal defendant who chooses to be represented

counsel

retains

“the

ultimate

authority

to

make

certain

14

fundamental decisions regarding the case” -- namely, whether to

plead guilty or otherwise concede guilt, waive a jury trial,

testify in his own behalf, or appeal -- he does not have a more

general right to supersede counsel’s judgment on how to present a

defense.

Jones v. Barnes, 463 U.S. 745, 751 (1983); see McCoy v.

Louisiana, 138 S. Ct. 1500, 1505, 1508 (2018).

As this Court has

emphasized, “the lawyer has -- and must have -- full authority to

manage the conduct of the trial.”

Taylor v. Illinois, 484 U.S.

400, 418 (1988); Gonzalez v. United States, 553 U.S. 242, 248-249

(2008).

Counsel

thus

exercises

strategic

judgment

about

“what

arguments to pursue, what evidentiary objections to raise, and

what agreements to conclude regarding the admission of evidence.”

McCoy, 138 S. Ct. at 1508 (citation omitted); see, e.g., New York

v. Hill, 528 U.S. 110, 114-115 (2000); see also Brookhart v. Janis,

384 U.S. 1, 8 (1966) (opinion of Harlan, J.) (“[A] lawyer may

properly make a tactical choice of how to run a trial even in the

face of [the] client’s

* * *

explicit disapproval.”); American

Bar Ass’n, Criminal Justice Standards for the Defense Function

§ 4-5.2 (4th ed. 2017) (describing division of decision-making

authority between client and counsel).

An attorney is not simply

“an adviser to a client with the client’s having the final say at

each point.”

United States v. Chapman, 593 F.3d 365, 370 (4th

Cir. 2010), cert. denied, 562 U.S. 1134 (2011) (quoting United

15

States v. Burke, 257 F.3d 1321, 1323 (11th Cir. 2001), cert.

denied, 537 U.S. 940 (2002)).

Instead, defense counsel “is an

officer of the court and a professional advocate pursuing a result

-- almost always, acquittal -- within the confines of the law; his

chief reason for being present is to exercise his professional

judgment to decide tactics.”

Ibid. (quoting Burke, 257 F.3d at

1323); see Jones, 463 U.S. at 751.

In cases where a defendant disagrees with his attorney’s

strategic decisions, he may “preserve actual control over the case

he chooses to present to the jury” by waiving the right to counsel

and representing himself.

McKaskle v. Wiggins, 465 U.S. 168, 178

(1984); see Faretta v. California, 422 U.S. 806, 819 (1975).

But

where

he

a

defendant

decides

to

be

represented

by

counsel,

necessarily “consent[s]” to his counsel’s control over “trial

strategy.”

b.

Id. at 820.

The

principles.

decision

below

properly

applied

the

foregoing

Consistent with this Court’s recognition that a

defendant retains the autonomy to make “fundamental decisions”

regarding the objectives of his defense, Jones, 463 U.S. at 751,

petitioner made the decision to plead not guilty and to invoke his

right to a jury trial, see id. at 759.

He also determined that

the ultimate objective of his defense was to avoid the death

penalty, see, e.g., C.A. App. 77, 161, 373, 574, 5563 -- an

16

objective that his attorneys respected and sought to achieve, see,

e.g., id. at 662.

Petitioner

was

not,

however,

entitled

to

control

his

counsel’s strategy for achieving that objective by dictating the

mitigation evidence that they could introduce.

Those strategic

judgments fall squarely within counsel’s purview to determine

“what arguments to pursue, what evidentiary objections to raise,

and

what

agreements

to

conclude

regarding

the

admission

of

evidence,” Gonzalez, 553 U.S. at 248 (citations omitted), in an

effort to achieve the defendant’s objectives. Unlike the decisions

reserved to a defendant, such strategic judgments do not involve

the defendant’s right to assert his innocence or the assertion (or

forfeiture) of a legal entitlement, like the right to a jury.

Instead, the decision of what mitigation evidence to introduce is

“a classic tactical decision left to counsel.”

Pet. App. 40a

(citation omitted).

In

challenging

the

decision

below,

petitioner

does

not

directly engage with the scope of counsel’s authority to make

strategic judgments, and instead simply asserts that a desire not

to present mental-health evidence is an “autonomy” interest akin

to the decision whether to concede guilt that McCoy held to be

within the defendant’s control.

Pet. 17-18.

But McCoy did not

confer on a defendant a comprehensive autonomy right “over his

defense,” as petitioner suggests.

Pet. 17; see, e.g., United

17

States v. Rosemond, 958 F.3d 111, 123 (2d Cir. 2020) (“McCoy [i]s

limited to a defendant preventing his attorney from admitting he

is guilty of the crime with which he is charged.”), cert. denied,

141 S. Ct. 1057 (2021).

To the contrary, McCoy reaffirmed that “[t]rial management is

the lawyer’s province” and distinguished “choices about what the

client’s objectives in fact are” (which the client makes) from

“strategic choices about how best to achieve a client’s objectives”

(which counsel makes).

objective

was

to

138 S. Ct. at 1508.

obtain

a

non-capital

Here, petitioner’s

sentence,

and

the

introduction of mitigation evidence was a strategic decision to

achieve that objective.

Petitioner’s contrary view would render

the line between “objectives” and “strategic choices” incoherent

and establish an unprecedented right to insist on the assistance

of

counsel

while

simultaneously

insisting

number of counsel’s strategic judgments.

on

superseding

any

See Pet. App. 41a.

Petitioner asserts (Pet. 20-21) that even if counsel controls

some decisions about what mitigation evidence to introduce, the

decision to introduce evidence of mental health should be treated

differently because it “resembles the choice to present an insanity

or diminished capacity defense, which nearly all jurisdictions

reserve for defendants.”

Pet. 20 (citing, e.g., United States v.

Read, 918 F.3d 712, 719 n.2 (9th Cir. 2019)).

But “an insanity

defense entails an admission of guilt,” Pet. App. 41a (citing 18

18

U.S.C. 17(a)), and a defendant is subject to confinement if the

defense is successful, see ibid. (citing 18 U.S.C. 4243(a) and

(e)).

Petitioner’s reliance on Schriro v. Landrigan, 550 U.S. 465,

475 (2007), and Blystone v. Pennsylvania, 494 U.S. 299, 306 n.4

(1990),

is

misplaced.

In

Landrigan,

the

Court

found

no

unreasonable application of clearly established law in a lower

court’s

finding

that

counsel

had

not

been

constitutionally

ineffective in declining to investigate mitigating evidence on

behalf of a defendant who had told counsel that he did not want

counsel to present any such evidence.

550 U.S. at 478.

Not only

does this case not involve an ineffective-assistance claim, which

would be governed by a different test (compare McCoy, 138 S. Ct.

at 1508, with Strickland v. Washington, 466 U.S. 668, 687 (1984)),

but “the fact that counsel could be found not ineffective for

conforming to the wishes of a defendant does not mean that counsel

must conform to the defendant’s wishes,” Pet. App. 40a n.16.

And

Blystone did not involve any question about the Sixth Amendment,

but simply observed in a footnote that the defendant had decided

not to present any mitigation at sentencing, contrary to counsel’s

advice.

c.

494 U.S. at 306 n.4.

Petitioner fails to identify any meaningful disagreement

in the lower courts on the application of well-settled Sixth

Amendment doctrine to his case.

19

Petitioner

principally

relies

(Pet.

11

n.4,

12

n.9)

on

decisions similar to Landrigan, which find that attorneys were not

constitutionally

desire

not

to

ineffective

present

for

acquiescing

mitigation

evidence.

to

a

See

defendant’s

Ramirez

v.

Stephens, 641 Fed. Appx. 312, 326-327 (5th Cir.), cert. denied,

137 S. Ct. 279 (2016); Tyler v. Mitchell, 416 F.3d 500, 504 (6th

Cir. 2005), cert. denied, 547 U.S. 1074 (2006); Wallace v. Davis,

362 F.3d 914, 919-920 (7th Cir.), cert. denied, 543 U.S. 1008

(2004); Singleton v. Lockhart, 962 F.2d 1315, 1316, 1321-1322 (8th

Cir.), cert. denied, 506 U.S. 964 (1992); People v. Brown, 326

P.3d 188, 204-211 (Cal. 2014), cert. denied, 574 U.S. 1160 (2015);

State v. Maestas, 299 P.3d 892, 958-962 (Utah 2012), cert. denied,

568 U.S. 1252 (2013); Commonwealth v. Puksar, 951 A.2d 267, 287293 (Pa. 2008); Brawner v. State, 947 So. 2d 254, 263-264 (Miss.

2006); Zagorski v. State, 983 S.W.2d 654, 657 (Tenn. 1998), cert.

denied, 528 U.S. 829 (1999); Trimble v. State, 693 S.W.2d 267, 279

(Mo. Ct. App. 1985); see also Shaw v. State, 207 So. 3d 79, 115

(Ala. Crim. App. 2014) (defendant argued “that the circuit court

interfered with his right to counsel by permitting him to waive

the presentation of mitigation evidence”), cert. denied, 137 S.

Ct. 828 (2017); Boyd v. State, 910 So. 2d 167, 189-190 (Fla. 2005)

(per curiam) (similar), cert. denied, 546 U.S. 1179 (2006); State

v. Grooms, 540 S.E.2d 713, 734-735 (N.C. 2000) (similar), cert.

denied, 534 U.S. 838 (2001); State v. White, 508 S.E.2d 253, 271

20

(N.C. 1998) (similar), cert. denied, 527 U.S. 1026 (1999); State

v. Roscoe, 910 P.2d 635, 649-651 (Ariz.) (similar), cert. denied,

519 U.S. 854 (1996); cf. State v. Thomas, 625 S.W.2d 115, 123-124

(Mo. 1981) (counsel not ineffective for failing to present mental

incapacity

defense

where

defendant

forbade

insisted he did not commit the crime).

decisions

do

not

suggest

that

that

defense

and

As discussed above, such

counsel

must accede

to

such

a

request, and thus do not conflict with other decisions (see Pet.

13 & n.11) that take no position on that issue.

Next, in many of the decisions that petitioner cites (Pet. 11

n.4, 12 n.9, 14 n.12), the defendant decided to waive mitigation

altogether because he preferred death to life imprisonment.

In

upholding counsel’s decision to comply with that request, those

decisions

recognized

that

foregoing

mitigation

defendant’s objective of avoiding life imprisonment.

advanced

the

See Ramirez,

641 Fed. Appx. at 326-327; Singleton, 962 F.2d at 1321-1322; Brown,

326 P.3d at 204-211; State v. Hausner, 280 P.3d 604, 628-630 (Ariz.

2012); Zagorski, 983 S.W.2d at 655-661; Morrison v. State, 373

S.E.2d 506, 508-509 (Ga. 1988), cert. denied, 490 U.S. 1012 (1989);

see also People v. Amezcua, 434 P.3d 1121, 1146-1149 (Cal. 2019)

(similar); St. Clair v. Commonwealth, 140 S.W.3d 510, 560-561 (Ky.

2004) (similar).

Here, in contrast, petitioner’s acknowledged

objective was life imprisonment.

As one of his own cited cases

explains, the strategic judgment about the evidence to present in

21

furtherance of that objective belonged to counsel.

See State v.

Cross, 132 P.3d 80, 95 (Wash.), cert. denied, 549 U.S. 1022 (2006)

(concluding that “[a] competent defendant may forbid counsel to

put on a mitigation case if his goal is to have the death penalty

imposed,” but once the defendant decides to seek life imprisonment,

“the strategy is largely in the hands of his attorneys”), abrogated

on other grounds by State v. Gregory, 427 P.3d 621 (2018).

Several decisions cited by petitioner (Pet. 11 n.4) assess

whether a defendant’s waiver of the right to present mitigating

evidence

was

knowing

and

intelligent.

That

is

a

different

question, governed by a different legal standard, from whether

counsel is required to acquiesce to a defendant’s desire not to

present

specific

evidence

or

testimony

in

mitigation.

See

Singleton, 962 F.2d at 1321; Boyd, 910 So. 2d at 188; St. Clair,

140 S.W.3d at 560-561; State v. Barton, 844 N.E.2d 307, 314-315

(Ohio 2006).

Other decisions (Pet. 11 n.4, 12 n.9) are a variant

on that same theme, finding a reasonable mitigation investigation

was necessary to ensure the validity of a mitigation waiver.

See

Blystone v. Horn, 664 F.3d 397, 422 n.21 (3d Cir. 2011); Dobbs v.

Turpin, 142 F.3d 1383, 1388 (11th Cir. 1998); Grim v. State, 971

So. 2d 85, 100 (Fla. 2007) (per curiam); People v. Steidl, 685

N.E.2d 1335, 1343-1344 (Ill. 1997).

Still others (Pet. 11 n.4, 12

n.8, 14 n.12) address whether permitting a defendant to override

counsel’s

mitigation

decisions

compromises

the

government’s

22

independent interest in a fair and reliable sentencing verdict.

See Amezcua, 434 P.3d at 1149; State v. Johnson, 401 S.W.3d 1, 1316 (Tenn.), cert. denied, 571 U.S. 992 (2013); Wallace v. State,

893 P.2d 504, 512 (Okla. Crim. App.), cert. denied, 516 U.S. 888

(1995).

And almost all of the remainder (Pet. 11 n.4) are

inapposite for individual reasons.

See Wertz v. State, 434 S.W.3d

895, 906 n.1 (Ark. 2014) (determining that counsel presented an

adequate mitigation case); Cooke v. State, 97 A.3d 513, 538 (Del.

2014) (rejecting as “illogical” defendant’s argument that his

capital sentence should be vacated because counsel introduced

mitigation evidence over his objection), cert. denied, 574 U.S.

1085 (2015); State v. Robert, 820 N.W.2d 136, 143-144 (S.D. 2012)

(concluding that defendant’s “death sentence does not appear to

have been the result of passion, prejudice, or any other arbitrary

factor”).

Ultimately, petitioner identifies only a single decision,

Louisiana v. Brown, 330 So. 3d 199 (La. 2021), cert. denied, 142

S. Ct. 1702 (2022), that involves the question presented here.

In

Brown, the defendant wanted to avoid the death penalty and was not

wholly opposed to a mitigation case, but did not want his uncle to

testify and stated that he was “willing to accept death before [he

would] let [his] mother get on the stand.”

218-220.

Id. at 219; see id. at

He opted to represent himself in the penalty phase after

the trial court advised him that counsel was entitled to call the

23

witnesses over his objection.

Id. at 219-221.

The Louisiana

Supreme Court deemed that advice erroneous, on the theory (which

it viewed to be supported by McCoy) that the defendant “had a

‘constitutional right to impose a condition of employment on his

counsel,’” and thus could “‘limit his defense consistent with his

wishes at the penalty phase of trial.’”

Id. at 224 (quoting State

v. Felde, 422 So. 2d 370, 395 (La. 1982), cert. denied, 461 U.S.

918 (1983)); see id. at 225.

But neither the Louisiana Supreme

Court’s decision nor the State’s petition for a writ of certiorari

in that case even cited the decision below, and any nascent,

unacknowledged

disagreement

between

the

Fourth

Circuit

and

a

single out-of-circuit state court does not warrant further review

of petitioner’s case.

2.

Petitioner separately contends (Pet. 21-32) that his

convictions under the religious-obstruction statute, 18 U.S.C.

247(a)(2) (2012), exceed Congress’s Commerce Clause authority.

Petitioner’s contention is unsound, and the court of appeals’

factbound determination that petitioner’s crimes had the requisite

nexus with interstate commerce does not merit this Court’s review.

a.

At the time of petitioner’s crimes, Section 247(a)(2)

prohibited “intentionally obstruct[ing], by force or threat of

force, any person in the enjoyment of that person’s free exercise

of religious beliefs, or attempt[ing] to do so,” under “any of the

circumstances referred to in subsection (b).”

18 U.S.C. 247(a)(2)

24

(2012).

Subsection (b), in turn, required the government to prove

that “the offense is in or affects interstate or foreign commerce.”

18 U.S.C. 247(b).

That jurisdictional element differentiates this case from

United States v. Lopez, 514 U.S. 549 (1995), and United States v.

Morrison, 529 U.S. 598 (2000), in which this Court concluded that

Congress had exceeded its commerce powers in enacting certain

statutes that, inter alia, lacked any such jurisdictional hook.

Lopez, 514 U.S. at 561 (noting that the statute there “contain[ed]

no jurisdictional element which would ensure, through case-by-case

inquiry,

that

the

firearm

possession

in

question

affects

interstate commerce”); Morrison, 529 U.S. at 613 (similar).

And

petitioner does not dispute that subsection (b) invokes Congress’s

full authority under the Commerce Clause.

Pet. App. 72a-73a n.45.

This Court has “identified three broad categories of activity

that Congress may regulate under its commerce power.”

U.S. at 558.

“First, Congress may regulate the use of the channels

of interstate commerce.

and

protect

Lopez, 514

the

Second, Congress is empowered to regulate

instrumentalities

of

interstate

commerce,

or

persons or things in interstate commerce, even though the threat

may come only from intrastate activities.

Finally, Congress’

commerce authority includes the power to regulate those activities

having a substantial relation to interstate commerce, i.e., those

activities that substantially affect interstate commerce.”

Id. at

25

558-559 (citations omitted); see Morrison, 529 U.S. at 608-609;

see also, e.g., Taylor v. United States, 579 U.S. 301, 306 (2016).

Petitioner’s crimes were well within that authority.

Petitioner used the internet -- which is both a channel and

an instrumentality of interstate commerce -- in direct furtherance

of his crime (“to pick his church target”) and “to maximize the

impact of his attack” (by posting his “racist manifesto and call

to action” on a foreign server).

20a-21a,

69a.

Petitioner’s

Pet. App. 73a, 74a; see id. at

crime

was

also

characterized

by

“multiple other connections to the means of commerce,” including

the use of a telephone to call Mother Emanuel and the repeated use

of a GPS and interstate highway to travel to Mother Emanuel.

at 75a.

“[T]aken together,” those uses of the channels and

instrumentalities

of

interstate

commerce

bring

petitioner’s

conduct within the ambit of Congress’s commerce authority.

b.

Id.

Petitioner’s contrary argument lacks merit.

Ibid.

He primarily

contends (Pet. 24) that the decision below conflicts with Lopez

and Morrison, each of which involved a statute whose validity

rested on its inclusion in the third category of commerce that

Congress may regulate (“activities having a substantial relation

to

interstate

commerce”).

Lopez,

514

U.S.

at

558-559;

see

Morrison, 529 U.S. at 609. The Court concluded that the connection

between

the

elements,

challenged

and

that

statutes,

third

which

category

was

lacked

too

jurisdictional

“attenuated”

for

26

congressional regulation.

Morrison, 529 U.S. at 615; see id. at

601-602 (statute providing civil remedy for victims of gendermotivated violence); Lopez, 514 U.S. at 551 (statute penalizing

possession of firearm in a school zone).

Petitioner’s conduct

here, in contrast, involved the direct use of the channels and

instrumentalities of commerce.

Petitioner

instrumentalities

asserts

and

See Pet. App. 73a-75a.

(Pet.

25)

that

his

channels

of

interstate

uses

of

the

commerce

were

“commonplace acts” that could not sustain federal jurisdiction.

But the court of appeals found that those uses, which both enabled

and exacerbated his crimes, were in fact “closely linked, both in

purpose and temporal proximity, to his violation of the religiousobstruction statute.”

Pet. App. 74a.

Petitioner also asserts

(Pet. 27) that “[t]ransactions merely preceded by interstate acts

* * *

are not ‘in’ interstate commerce.”

But “the authority of

Congress to keep the channels of interstate commerce free from

immoral and injurious uses

* * *

is no longer open to question,”

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256

(1964) (citation omitted), and petitioner acknowledges that “this

Court has held that Congress can punish interstate travel or use

of interstate instrumentalities to ‘promote’ intrastate harm,”

Pet. 29 n.25 (quoting Brooks v. United States, 267 U.S. 432, 436

(1925)); see Pet. App. 74a (citing cases).

27

Here,

petitioner

employed

multiple

instrumentalities

and

channels of interstate commerce to “promote” his mass shooting at

Mother Emanuel.

the

relevant

“[b]ecause

itself,

Brooks, 267 U.S. at 436.

precedents

Section

not

do

not

247(a)(2)

interstate

Petitioner argues that

support

punishes

travel

or

the

decision

below

religious

obstruction

use

interstate

of

instrumentalities to further religious obstruction.”

Pet. 29

n.25.

But, as noted above, Section 247(a)(2) incorporates an

express

jurisdictional

that

“the

offense is in or affects interstate or foreign commerce.”

18

U.S.C. 247(b).

element

that

requires

proof

Moreover, the proper focus of petitioner’s as-

applied challenge is on his own conduct.

See, e.g., Sabri v.

United States, 541 U.S. 600, 605, 609 (2004).

In finding that the

specific conduct at issue here fell within Congress’s regulatory

authority,

the

court

of

appeals

emphasized

that

it

was

“not

suggesting that a defendant’s internet usage before or even while

committing a federal offense will always place his conduct within

the reach of Congress’s Commerce Clause authority.”

Pet. App.

74a.

The court of appeals’ narrow, factbound determination is

neither “far-reaching,” Pet. 22, nor deserving of this Court’s

review.

Petitioner does not identify any circuit that has ever

found Section 247(a)(2) unconstitutional, either on its face or as

applied.

Nor does petitioner explain how the court of appeals’

28

circumstance-specific analysis would control the outcome in future

cases presenting different facts.

In addition, the court did not

address a separate ground for affirmance that the government

raised. In particular, the government observed that in Scarborough

v. United States, 431 U.S. 563 (1977), this Court held that the

jurisdictional element in the federal felon-in-possession statute

was satisfied by proof that the firearm had previously traveled in

interstate commerce, id. at 568, 575, 578, and argued that the

requisite

commerce

nexus

here

was

independently

provided

by

petitioner’s use of a gun, ammunition, and a tactical pouch that

had all themselves traveled in interstate commerce, see Pet. App.

75a-77a & nn.46, 48.

In any event, this would be an unsuitable vehicle for further

review of this issue because, even if the Court were to overturn

petitioner’s Section 247(a)(2) convictions, that would not itself

suggest that petitioner’s capital sentence should be set aside.

Petitioner was convicted on 18 capital counts:

violations

of

the

religious-obstruction

nine counts for

statute

resulting

in

death, under 18 U.S.C. 247(a)(2) (2012) and 18 U.S.C. 247(d)(1),

and nine counts for using a firearm to commit murder during and in

relation to a crime of violence, in violation of 18 U.S.C. 924(c)

and (j)(1).

Judgment 2.

Although only one predicate crime of

violence was necessary to sustain each of the Section 924 counts,

the

government

proved

(and

the

jury

found)

two

alternative

29

predicates -- a violation of Section 247(a)(2) and a violation 18

U.S.C 249(a)(1) -- to support each.

Pet. App. 56a, 90a, 93a.

would

therefore

be

Indictment 9; Judgment 1;

Petitioner’s Section 924(c) convictions

infirm

only

if

he

prevailed

on

his

constitutional challenges to both the Section 247(a)(2) and the

Section 249(a)(1) convictions, as petitioner does not directly

challenge the validity of those Section 924(c) convictions.

3.

Petitioner’s challenge (Pet. 32-40) to his hate-crime

convictions under Section 249(a)(1), which effectively asks this

Court

to

overrule

its

precedent

interpreting

the

scope

of

Congress’s enforcement powers under the Thirteenth Amendment, is

unsound and provides no justification for further review.

This

Court has previously denied other petitions presenting similar

arguments.

See, e.g., Metcalf v. United States, 139 S. Ct. 412

(2018) (No. 17-9340); Cannon v. United States, 574 U.S. 1029 (2014)

(No. 14-5356); Hatch v. United States, 572 U.S. 1018 (2014) (136765).

a.

The same course is warranted here.

The Thirteenth Amendment states that “[n]either slavery

nor involuntary servitude

* * *

shall exist within the United

States,” and provides that “Congress shall have power to enforce

this article by appropriate legislation.” U.S. Const. Amend. XIII.

In the Civil Rights Cases, 109 U.S. 3 (1883), the Court recognized

that the Thirteenth Amendment authorizes Congress “to pass all laws

necessary and proper for abolishing all badges and incidents of

30

slavery in the United States.”

Id. at 20.

And in Jones v. Alfred

H. Mayer Co., 392 U.S. 409 (1968), the Court relied on the Civil

Rights Cases and explained that the Amendment “empowered Congress to

do much more” than abolish slavery and that “Congress has the power

under the Thirteenth Amendment rationally to determine what are the

badges and the incidents of slavery, and the authority to translate

that determination into effective legislation.”

Id. at 439-440.

Applying that standard, Jones upheld a federal statute prohibiting

racial discrimination in the sale of property on the ground that

Congress had rationally determined that such discrimination is among

the badges and incidents of slavery. Id. at 438-444. Other decisions

of this Court have since reiterated the principle explicated and

applied in Jones.

179

(1976)

See, e.g., Runyon v. McCrary, 427 U.S. 160, 170,

(relying

discrimination

in

on

Jones

making

and

to

uphold

enforcing

prohibition

on

racial

contracts);

Griffin

v.

Breckenridge, 403 U.S. 88, 105 (1971) (relying on Jones to uphold

private cause of action for conspiring to violate equal rights).

The court of appeals correctly applied those precedents to

reject petitioner’s facial challenge to Section 249(a)(1), which

prohibits “willfully caus[ing] bodily injury to any person or,

through the use of

* * *

a firearm,

* * *

attempt[ing] to cause

bodily injury to any person, because of the actual or perceived

race

* * *

explained,

of any person.”

18 U.S.C. 249(a)(1).

Congress

recognized

soundly

that

As the court

“[s]lavery

and

31

involuntary servitude were enforced through widespread public and

private violence directed at persons because of their race, color,

or

ancestry,”

and

permissibly

determined

that

“eliminating

racially motivated violence is an important means of eliminating,

to the extent possible, the badges, incidents, and relics of

slavery.”

Pet. App. 80a (quoting 34 U.S.C. 30501(7)) (brackets in

original).

Section

249(a)(1)

is

therefore

“‘appropriate’

in

exactly the manner envisioned in Jones.” Ibid. Indeed, petitioner

does not contend otherwise.

Instead, petitioner argues (Pet. 32) that this Court should

effectively overrule its precedents on this issue, asserting a

need to “harmonize” the standard for enforcement legislation under

the Thirteenth Amendment with the purportedly more “stringent

tests for analyzing legislation under the Fourteenth and Fifteenth

Amendments.”

521

U.S.

Petitioner thus invokes City of Boerne v. Flores,

507

(1997),

which

required

“congruence

and

proportionality between the injury to be prevented or remedied and

the means adopted to that end” to bring a statute within Congress’s

enforcement authority under the Fourteenth Amendment, id. at 520,

and Shelby County v. Holder, 570 U.S. 529 (2013), which observed

that “a statute’s ‘current burdens’ must be justified by ‘current

needs’” in analyzing a statute’s constitutionality as an exercise

of Congress’s power under the Fifteenth Amendment, id. at 550

(citation omitted).

32

Petitioner’s argument (Pet. 38) for reflexively transposing

Fourteenth or Fifteenth Amendment tests into the context of the

Thirteenth

Amendment

is

misplaced.

As the court of appeals

recognized, neither City of Boerne nor Shelby County “mentions the

Thirteenth Amendment, neither cites Jones, and neither discusses

Congress’s power to identify and legislate against the badges and

incidents of slavery.”

Pet. App. 82a.

And each amendment is

characterized by its “own unique history, structure, and caselaw.”

United States v. Diggins, 36 F.4th 302, 313 (1st Cir. 2022)

(upholding

Section

249(a)(1)

against

a

similar

challenge).

Accordingly, in explicating the proper approach to Thirteenth

Amendment legislation, Jones examined the Amendment’s text and

historical context, including early precedent and contemporary

congressional

debates.

See

392

U.S.

at

429-430,

437-444.

Petitioner does not take issue with that interpretive approach;

indeed, the Court’s interpretation of the Fourteenth Amendment in

City of Boerne “employ[ed] parallel methodologies and modes of

reasoning,”

different

Diggins,

36

Amendment.

F.4th

at

Petitioner

313,

but

offers

no

simply

analyzed

sound

basis

a

for

disregarding Jones to impose an artificial “uniform[ity],” Pet.

38, that the individual contexts of the different Amendments would

not themselves support.

Petitioner also disregards the different implications that

the different Amendments have for federalism.

By their terms, the

33

Fourteenth and Fifteenth Amendments apply only to state action.

The challenged federal statutes in both City of Boerne and Shelby

County directly regulated the States, and the Court’s analysis

accordingly took account of an interest in state autonomy.

See

City of Boerne, 521 U.S. at 532-535; Shelby County, 570 U.S. at

542-545.

The Thirteenth Amendment, however, permits the direct

regulation of private actors, see Civil Rights Cases, 109 U.S. at

23, and Section 249(a)(1) reflects an exercise of that authority.

That distinction, which renders the state-autonomy interest at

issue in City of Boerne and Shelby County inapposite, “has great

significance,” District of Columbia v. Carter, 409 U.S. 418, 423

(1973), to the separate consideration of the Thirteenth Amendment.

Petitioner additionally fails to show that overruling Jones

would be appropriate as a matter of stare decisis.

See, e.g.,

Evans v. Michigan, 568 U.S. 313, 327 (2013) (“declin[ing] to

revisit” prior decisions).

Jones considered and rejected a narrow

reading of the Thirteenth Amendment, and this Court and lower

courts have repeatedly recognized and applied Jones in the 50 years

since it was decided.

See, e.g., Runyon, 427 U.S. at 168, 179;

Griffin, 403 U.S. at 105; p. 34, infra (citing cases); see also

City of Memphis v. Greene, 451 U.S. 100, 125 n.39 (1981) (quoting

Jones, 392 U.S. at 440, for proposition that “Congress has the

power under the Thirteenth Amendment rationally to determine what

are the badges and the incidents of slavery, and the authority to

34

translate that determination into effective legislation”); Palmer

v. Thompson, 403 U.S. 217, 227 (1971) (noting that under Jones,

Congress has broad power to outlaw the “badges of slavery”).

b.

Petitioner

does

not

allege

a

circuit

conflict

over

Jones’s continuing viability or the constitutionality of Section

249(a)(1),

or

otherwise

present

a

sound

basis

for

granting

certiorari on the issue of Section 249(a)(1)’s constitutionality.

To the contrary, the courts of appeals have unanimously upheld

that provision against constitutional challenge.

See Diggins, 36

F.4th at 317; United States v. Metcalf, 881 F.3d 641, 644-645 (8th

Cir.), cert. denied, 139 S. Ct. 412 (2018); United States v.

Cannon, 750 F.3d 492, 505 (5th Cir.), cert. denied, 574 U.S. 1029

(2014); United States v. Hatch, 722 F.3d 1193, 1200-1201, 1206,

1209 (10th Cir. 2013), cert. denied, 572 U.S. 1018 (2014).

And

two additional circuits have applied Jones to uphold 18 U.S.C.

245(b)(2)(B) -- a similar statute prohibiting certain forms of

racially motivated violence.

See United States v. Nelson, 277

F.3d 164, 173-191 (2d Cir.), cert. denied, 537 U.S. 835 (2002);

United States v. Allen, 341 F.3d 870, 883-884 (9th Cir. 2003),

cert. denied, 541 U.S. 975 (2004).

In

any

event,

Section

249(a)(1)

satisfies

articulated in both City of Boerne and Shelby County.

Boerne,

the

Court

determined

that

the

the

tests

In City of

Religious

Freedom

Restoration Act of 1993, 42 U.S.C. 2000bb et seq., was “so out of

35

proportion to a supposed remedial or preventive object that it

cannot be understood as responsive to, or designed to prevent,

unconstitutional behavior,” as opposed to an impermissible effort

“to attempt a substantive change in constitutional protections.”

521 U.S. at 532.

The Court emphasized, however, that Congress has

“wide latitude” in enacting enforcement legislation, id. at 520,

and that “[l]egislation which deters or remedies constitutional

violations can fall within the sweep of Congress’ enforcement power

even if in the process it prohibits conduct which is not itself

unconstitutional

and

intrudes

into

‘legislative

spheres

of

autonomy previously reserved to the States,’” id. at 518 (citation

omitted).

And in Shelby County, the Court invalidated Section

4(b) of the Voting Rights Act of 1965, 52 U.S.C. 10303(b) (Supp.

IV 2016), because that provision imposed requirements based on

factual

circumstances

earlier,

and

the

that

Court

had

existed

concluded

that

“[n]early

“things

50

years”

ha[d]

changed

dramatically” in the intervening decades, 570 U.S. at 547, such

that the legislation was not justified by “current conditions,”

id. at 557.

The issues the Court identified in City of Boerne and Shelby

County are absent here.

The connection between Section 249(a)(1)

and the “slavery” and “involuntary servitude” prohibited by the

Thirteenth Amendment, U.S. Const. Amend. XIII, § 1, is direct and

does

not

reflect

a

“substantive

change

in

constitutional

36

protections.”

City of Boerne, 521 U.S. at 532.

The statute

targets the use of private violence against minorities based on

their race, and petitioner does not challenge Congress’s finding

that “[s]lavery and involuntary servitude were enforced

* * *

through widespread public and private violence directed at persons

because of their race, color, or ancestry.”

34 U.S.C. 30501(7).

Section 249(a)(1) is also warranted in light of “current

conditions.”

Shelby County, 570 U.S. at 550.

A 2002 Senate Report

discussing a predecessor bill had observed that “the number of

reported hate crimes has grown almost 90 percent over the past

decade,” averaging “20 hate crimes per day for 10 years straight.”

S. Rep. No. 147, 107th Cong., 2d Sess. 2 (2002).

And the 2009

House Report accompanying Section 249(a)(1)’s enactment cited FBI

data identifying over 118,000 reported violent hate crimes since

1991, including nearly 4900 motivated by bias based on race or

national origin and ethnicity in 2007 alone, in finding that

“[b]ias crimes are disturbingly prevalent.”

111th Cong., 1st Sess. 5 (2009).

H.R. Rep. No. 86,

Based on this evidence, Congress

properly determined that racially motivated violence remains “a

serious national problem,” 34 U.S.C. 30501(1), and permissibly

acted

to

criminalize

such

violence,

racially motivated mass shooting here.

including

petitioner’s

37

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KRISTEN CLARKE

KENNETH A. POLITE, JR.

Assistant Attorneys General

BONNIE I. ROBIN-VERGEER

BRANT S. LEVINE

ANN O’CONNELL ADAMS

Attorneys

AUGUST 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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