Petition for Writ of Certiorari — Ronald William Brooks, Petitioner v. United States

NO. _________

In the Supreme Court of the United States

________________

RONALD WILLIAM BROOKS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

________________

PETITION FOR A WRIT OF CERTIORARI

________________

J. Matthew Wright

Counsel of Record

FEDERAL PUBLIC

DEFENDER’S OFFICE

500 South Taylor Street

Unit 110.

Amarillo, Texas 79101

(806) 324-2370

Matthew_Wright@fd.org

Counsel for Petitioner

October 19, 2022

II

QUESTION PRESENTED

Whether the boilerplate waiver of Petitioner’s

appellate and post-conviction rights contained within

his plea agreement bars his claim under 28 U.S.C.

§ 2255 that he stands convicted of a non-existent or

substantively unconstitutional crime.

III

DIRECTLY RELATED PROCEEDINGS

United States v. Brooks, No. 3:11-cr-250 (N.D. Tex.

Dec. 14, 2012), as amended (Jan. 14, 2013)

Brooks v. United States, No. 3:16-cv-1680 (N.D. Tex.

April 13, 2020)

United States v. Brooks, No. 20-10401 (5th Cir. July

21, 2022).

IV

TABLE OF CONTENTS

Question Presented ................................................... II

Directly Related Proceedings ................................... III

Opinions Below ........................................................... 2

Jurisdiction ................................................................. 2

Statutory Provisions Involved.................................... 3

Statement ................................................................... 4

Reasons for Granting the Petition ............................. 7

I.

The Fifth Circuit was wrong. .............................. 7

II. This Court should grant certiorari. .................. 14

A. The circuits are divided about the

“miscarriage of justice” exception. ............. 14

B. Granting certiorari would allow the

Court to clarify the precedential status

and meaning of Grzegorczyk v. United

States........................................................... 16

Petition Appendix

Opinion, United States v. Brooks, No. 20-10401

(5th Cir. July 21, 2022) ......................................... 1a

District Court Opinion and Order, United States

v. Brooks, No. 3:16-cv-1680 (N.D. Tex. April 13,

2020) ...................................................................... 6a

Findings, Conclusions, and Recommendation of

U.S. Mag. Judge, United States v. Brooks, No.

3:16-cv-1680 (N.D. Tex. March 2, 2020) ................ 8a

V

TABLE OF AUTHORITIES

Cases

Bousley v. United States,

523 U.S. 614 (1998) .................................... 8, 12, 19

Davis v. United States,

417 U.S. 333 (1974) .............................................. 11

Garza v. Idaho,

139 S. Ct. 738 (2019) .................................. 8, 10, 14

Grzegorczyk v. United States,

142 S. Ct. 2580 (2022) .............................. 16, 17, 18

Grzegorczyk v. United States,

997 F.3d 743 (7th Cir. 2021) .......................... 17, 18

Halprin v. Davis,

140 S. Ct. 1200 (2020) (Sotomayor,

J., respecting denial of certiorari) ....................... 16

Johnson v. United States,

567 U.S. 591 (2015) ...................................... passim

Maryland v. Baltimore Radio Show,

338 U.S. 912 (1950) (Frankfurter, J.,

respecting denial of certiorari) ............................ 16

Robertson v. U.S. ex rel. Watson,

560 U.S. 272 (2010) (Roberts, C.J.,

dissenting from dismissal) ................................... 16

VI

Sessions v. Dimaya, 138 S. Ct. 1204

(2018) ...................................................... 5, 6, 13, 18

Sunbeam Corp. v. Masters of Miami,

Inc.,

225 F.2d 191 (5th Cir. 1955) ................................ 17

United States v. Adkins,

743 F.3d 176 (7th Cir. 2014) ................................ 15

United States v. Barnes,

953 F.3d 383 (5th Cir. 2020) ................................ 15

United States v. Caldwell,

38 F.4th 1161 (5th Cir. 2022) .............................. 18

United States v. Davis,

139 S. Ct. 2919 (2019) .................................. passim

United States v. Guillen,

561 F.3d 527 (D.C. Cir. 2009) .............................. 15

United States v. Guzman,

707 F.3d 938 (8th Cir. 2013) ................................ 15

United States v. Johnson,

347 F.3d 412 (2d Cir. 2003).................................. 15

United States v. Khattak,

273 F.3d 557 (3d Cir.2001) .................................. 15

United States v. Ligon,

461 F. App'x 582 (9th Cir. 2011) .......................... 15

United States v. Ready,

82 F.3d 551 (2d Cir. 1996) ................................... 15

VII

United States v. Shockey,

538 F.3d 1355 (10th Cir. 2008) ............................ 15

United States v. Spruill,

292 F.3d 207 (5th Cir. 2002) .................................. 8

United States v. Teeter,

257 F.3d 14 (1st Cir.2001) ................................... 15

United States v. Vargas-Soto,

35 F.4th 979 (5th Cir. 2022) .................................. 6

United States v. Williams,

897 F.3d 660 (5th Cir. 2018) .................................. 6

Statutes

18 U.S.C. § 16(b) ...................................................... 5, 6

18 U.S.C. § 922(g)(1) .................................................... 4

18 U.S.C. § 924(c) ...................................... 5, 11, 13, 19

18 U.S.C. § 924(c)(3)(B) ......................................... 6, 14

18 U.S.C. § 1201 .......................................................... 4

28 U.S.C. § 1254(1) ...................................................... 2

28 U.S.C. § 2255 ................................................ passim

28 U.S.C. § 2255(a), (b), and (f) ................................... 3

28 U.S.C. § 2255(f)(1) .................................................. 6

Fed. R. Civ. P. 8(c)(1) ................................................. 13

VIII

Fed. R. Crim. P. 11(b)(3).............................................. 8

Fed. R. Civ. P. 12(b) ................................................... 13

2

In the Supreme Court of the United States

_________________________

No ______

RONALD W. BROOKS,

v.

Petitioner,

UNITED STATES OF AMERICA,

_________________________

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________

Ronald W. Brooks respectfully petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The Fifth Circuit’s opinion (2022 WL 2871200,

Petition Appendix 1a–5a) was not selected for

publication in the Federal Reporter. The opinions of

the District Court (2019 WL 3024649, App. 7a–11a)

and the Magistrate Judge (2019 WL 4418418, App.

12a–37a) were also unpublished.

JURISDICTION

The Fifth Circuit entered judgment on July 21,

2022. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

3

STATUTORY PROVISIONS INVOLVED

This case involves the interpretation

application of 28 U.S.C. § 2255(a), (b), and (f):

(a) A prisoner in custody under sentence of a

court established by Act of Congress claiming

the right to be released upon the ground that

the sentence was imposed in violation of the

Constitution or laws of the United States, or

that the court was without jurisdiction to

impose such sentence, or that the sentence was

in excess of the maximum authorized by law,

or is otherwise subject to collateral attack, may

move the court which imposed the sentence to

vacate, set aside or correct the sentence.

(b) Unless the motion and the files and records

of the case conclusively show that the prisoner

is entitled to no relief, the court shall cause

notice thereof to be served upon the United

States attorney, grant a prompt hearing

thereon, determine the issues and make

findings of fact and conclusions of law with

respect thereto. If the court finds that the

judgment was rendered without jurisdiction,

or that the sentence imposed was not

authorized by law or otherwise open to

collateral attack, or that there has been such a

denial or infringement of the constitutional

rights of the prisoner as to render the

judgment vulnerable to collateral attack, the

court shall vacate and set the judgment aside

and shall discharge the prisoner or resentence

and

4

him or grant a new trial or correct the sentence

as may appear appropriate.

****

(f) A 1-year period of limitation shall apply to

a motion under this section. The limitation

period shall run from the latest of-(1) the date on which the judgment of

conviction becomes final;

(2) the date on which the impediment to

making a motion created by governmental

action in violation of the Constitution or laws

of the United States is removed, if the

movant was prevented from making a

motion by such governmental action;

(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; or

(4) the date on which the facts supporting

the claim or claims presented could have

been discovered through the exercise of due

diligence.

STATEMENT

In 2012, Petitioner Ronald Brooks pleaded guilty

to kidnapping, 18 U.S.C. § 1201; possessing a firearm

after felony conviction, 18 U.S.C. § 922(g)(1); and

possessing a firearm in furtherance of a “crime of

5

violence”—kidnapping—under 18 U.S.C. § 924(c).

App. 2a, 8a. Everyone now agrees that this conviction

is “constitutionally problematic,” to use the

Government’s words, “because kidnapping as defined

in Section1201 does not satisfy Section 924(c)(3)(A),

and Section 924(c)(3)(B) can no longer support it.”

App. 10a.

Mr. Brooks’s first hint of this now-undisputed

problem came years after his guilty plea and sentence.

In 2015, this Court decided that the Armed Career

Criminal

Act’s

“residual

clause”

was

unconstitutionally vague. See Johnson v. United

States, 567 U.S. 591, 597 (2015). Correctly perceiving

that the substantive constitutional principle

announced in Johnson would also invalidate his own

§ 924(c) conviction, Mr. Brooks filed a motion to vacate

that conviction in June 2016.

That pro se filing was the first step in a years-long

odyssey. The district court appointed counsel, who

filed an amended § 2255 motion on Mr. Brooks’s

behalf. The district court stayed the case several times

to await decisions from this Court or the Fifth Circuit.

In May 2017, the magistrate judge assigned to the

case recommended dismissing it as untimely under

§ 2255(f)(1) and (3). 5th Cir. R. 77–82. The district

court did not take action on that recommendation.

After this Court held that the materially identical

residual clause in 18 U.S.C. § 16(b) was

unconstitutionally vague, see Sessions v. Dimaya, 138

S. Ct. 1204 (2018), the Government filed its answer

and response to the § 2255 motion. App. 151; 5th Cir.

R. 102–108. That August 2018 answer raised only one

defense: timeliness. According to the Government’s

6

position back then, the “rights” announced in Johnson

and Dimaya did not reset the limitations period for

someone like Mr. Brooks who had been convicted

under 18 U.S.C. § 924(c)(3)(B). By that logic, Mr.

Brooks’s post-conviction motion was outside the period

specified in 28 U.S.C. § 2255(f)(1).1 See App. 11a.

The court then stayed the case to await this Court’s

decision in United States v. Davis, 139 S. Ct. 2919

(2019). At the time, the Government acknowledged

that “the only issue remaining is whether Brooks can

bring his Section 924(c)(1) challenge at this time

under Section 2255(f)(3) since, otherwise, the Section

2255 motion is untimely.” App. 4a–5a (quoting 5th Cir.

R. 122).

After Davis, the “only issue remaining” in the case

was resolved in Petitioner’s favor. Even so, the court

invited the Government to “supplement” its response.

App. 2a, 9a. Only then—more than a year after its

answer, and more than three years after Mr. Brooks’s

pro se motion to vacate—did the Government argue

that Mr. Brooks had waived his right to seek relief

under § 2255 as part of his plea agreement. App. 2a–

1

The Fifth Circuit’s pronouncements on the (f)(3) timeliness

question are difficult to reconcile with one another (Some might

say impossible). Compare and contrast United States v. Williams,

897 F.3d 660, 662 (5th Cir. 2018) (holding that Johnson triggered

§ 2255(f)(3) for ACCA-residual-clause challenges; Dimaya

“opened the door” and commenced the § 2255(f)(3) period for 18

U.S.C. § 16(b) challenges; and neither decision triggered (f)(3) for

someone convicted under § 924(c)(3)(B)), with United States v.

Vargas-Soto, 35 F.4th 979, 991 (5th Cir. 2022) (“It’s wrong to

suggest that Dimaya reset the (f)(3) trigger” to challenge

§ 16(b).”).

7

3a, 11a. The revised answer also explicitly waived the

timeliness defense previously asserted. 5th Cir. R.

135.

Mr. Brooks cried foul. First, the Government

waived or forfeited any waiver defense by omitting it

from the original answer. Second, those boilerplate

appellate waivers in federal plea agreements do not

bar a claim that the “crime” of conviction was not

really a crime at all. Third, enforcing the waiver to

leave in place an unconstitutional and substantively

unauthorized conviction would work a miscarriage of

justice. App. 11a–16a.

In March 2020, the district court dismissed the

action because of the waiver but granted a Certificate

of Appealability on three issues: “(1) whether the

Government forfeited the right to invoke the postconviction remedy waiver, (2) whether the waiver bars

[Brooks’s] Davis claim, and (3) whether the waiver is

unenforceable under the miscarriage of justice

exception.” App. 3a.

On appeal, the Fifth Circuit affirmed the district

court on all three issues. App. 1a–5a.

REASONS FOR GRANTING THE PETITION

I.

The Fifth Circuit was wrong.

Imagine this scenario: you’ve done something

wrong, and you are willing to admit it rather than

putting the Government to its burden at trial. You,

your lawyer, and the prosecutor reach an agreement

about the appropriate punishment that should be

imposed, and you also agree that that aggregate

punishment should be allocated among three separate

8

federal crimes. But, unbeknownst to any of you, one of

the crimes you promised to plead guilty to is not really

a crime—it is “no law at all.” Davis, 139 S. Ct. at 2323.

There are many safeguards in place to try to avoid

this scenario. Of course, the Constitution itself is

supposed to govern the actions of all three branches of

the federal government. That doesn’t always happen,

but the federal criminal justice is filled with people

who are supposed to keep you from falling into this

kind of a trap. You are entitled to be represented by

an attorney who is familiar with any available

defenses, and who puts your interests first. There is

also a judge who cannot let you plead guilty (or accept

your plea) if the thing that you are admitting is not a

crime. In legal terminology, your guilty plea must be

“intelligent”—preceded by “real notice of the true

nature of the charge against” you, which is “the first

and most universally recognized requirement of due

process.” Bousley v. United States, 523 U.S. 614, 618,

(1998) (quoting Smith v. O’Grady, 312 U.S. 329, 334,

(1941)).

Even if you understand the nature of the charge

against you, a federal judge cannot lawfully accept

your plea without determining that the conduct you

have admitted really is a crime—in other words, “that

there is a factual basis for the plea.” Fed. R. Crim. P.

11(b)(3). “The purpose underlying this rule is to

protect a defendant who may plead with an

understanding of the nature of the charge, but

‘without realizing that his conduct does not actually

fall within the definition of the crime charged.’” United

States v. Spruill, 292 F.3d 207, 215 (5th Cir. 2002)

(internal citations omitted).

9

Now imagine that the plea agreement contains a

boilerplate waiver of appellate and post-conviction

rights:

Brooks waives his rights, conferred by 28

U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal

from his conviction and sentence. He further

waives his right to contest his conviction and

sentence in any collateral proceeding,

including proceedings under 28 U.S.C. § 2241

and 28 U.S.C. § 2255. He further waives his

right to seek any future reduction in his

sentence (e.g., based on a change in sentencing

guidelines or statutory law). Brooks, however,

reserves the rights (a) to bring a direct appeal

of a sentence exceeding the statutory

maximum punishment that is applicable at

the time of his initial sentencing, (b) to

challenge the voluntariness of his plea of

guilty or this waiver, or (c) to bring a claim of

ineffective assistance of counsel.

5th Cir. Sealed R. 399, quoted in part at App. 3a.

In that scenario, are you stuck with a conviction

and sentence for a so-called “crime” defined by a concededly invalid and unconstitutional law? The Fifth

Circuit said “yes.” App. 1a–5a. The right answer is

“no.”

10

A. If a plea to a non-existent crime is

unintelligent, then a boilerplate waiver of

postconviction rights entered during the

same plea proceeding is unenforceable.

“[A]ll jurisdictions appear to treat at least some

claims as unwaiveable. Most fundamentally, courts

agree that defendants retain the right to challenge

whether the waiver itself is valid and enforceable—for

example, on the grounds that it was unknowing or

involuntary.” Garza v. Idaho, 139 S. Ct. 738, 745

(2019) & cases cited at note 6.

Mr. Brooks pressed this argument in the district

court and on appeal. See App. 13a–15a; Brooks C.A.

Br. 13–17. The Fifth Circuit skated over this issue

without addressing it, but it shouldn’t have. As soon

as the Government invoked the putative waiver, Mr.

Brooks responded that a federal court “cannot allow a

defendant to plead guilty to a non-existent offense.”

App. 13a. Since the guilty plea itself was bad—it turns

out that one of the “crimes” was not really a crime at

all—then court’s acceptance of the plea agreement was

also irrevocably tainted. The parties harbored a

mistaken assumption about the law when they

entered into the plea agreement, and the district court

embraced that same mistaken assumption when it

accepted the plea and the associated agreement.

If any of the players had realized the error, none of

this would have happened. The prosecutor would not

have asked the grand jury to indict for the noncrime;

the defense attorney would not have advised Mr.

Brooks to plead guilty to the noncrime; the prosecutor,

the defense attorney, and Mr. Brooks would not have

structured a plea agreement so as to include

11

conviction for a noncrime; the district court (and the

defense attorney) would have advised Mr. Brooks that

the conduct he was admitting would not violate 18

U.S.C. § 924(c); and, failing all of that, the district

court would have refused to accept the guilty plea

because there was no factual basis to support that

plea.

The Fifth Circuit’s decision must rest on one of

three dubious premises: (a) that Mr. Brooks’s guilty

plea and plea agreement were “intelligent” despite the

fact that he was advised and mistakenly believed his

admitted conduct was an actual crime; (b) Mr.

Brooks’s plea agreement, including the waiver of the

right to file a post-conviction challenge, was

“intelligent” even though the plea itself was

unintelligent; or (c) it’s fine if someone pleads guilty to

a noncrime if everyone believes otherwise at the time,

so long as that defective plea is rendered in exchange

for “major benefits.” App. 5a. None of these arguments

holds water.

B. Even if the postconviction waiver were

constitutionally valid, the miscarriage-ofjustice exception would prevent its

enforcement to insulate a defendant’s

conviction of a noncrime from judicial

review.

As explained below, many appellate courts have

recognized that a defendant can avoid enforcement of

an appeal or post-conviction waiver where dismissal

would work a miscarriage of justice. “[C]onviction and

punishment” “for an act that the law does not make

criminal” “inherently results in a complete

miscarriage of justice.” Davis v. United States, 417

12

U.S. 333, 346 (1974); accord Bousley, 523 U.S. at 626

(Stevens, J., concurring in part and dissenting in

part).

C. At a minimum, the interests of justice did

not favor tardy amendment of the

Government’s answer and enforcement of

the waiver.

There are some who might argue that a defendant

who is aware of the right to appeal and the right to file

a post-conviction challenge under 28 U.S.C. § 2255,

but executes a plea agreement waiving those

procedural rights, should be held to the waiver,

regardless of how badly the person was advised by

court, attorney, prosecutor, and regardless of the

miscarriage of justice that results from leaving in

place a conviction for a noncrime. Someone making

that argument would probably say that procedural

rules should followed, no matter how sharp the

consequences, because geese and ganders should

always be offered the same sauce.

Even that argument won’t work here. There is no

question that someone is going to prevail by asserting

a procedural right that was, by all appearances,

previously given up, and then asserted later. Mr.

Brooks signed a plea agreement containing a

boilerplate waiver of the right to contest his conviction

in “any collateral proceeding.” App. 3a. At the time,

nothing suggested to him that one of the convictions

was substantively invalid. It would be years before

this Court’s decision in Johnson revealed and

recognized the vagueness problems with ordinary-case

residual clauses. But Mr. Brooks did sign the plea

agreement.

13

The Government—represented by the most

powerful collection of lawyers in the world—also

decided not to assert any affirmative or procedural

defense of waiver when it filed its first motion to stay

the case in September of 2016 or even when it filed its

answer to the motion in August of 2018. By that time,

it was clear that there might be some merit to Mr.

Brooks’s contention. This Court had already decided

Johnson and Dimaya. To many observers, it was only

a matter of time until Davis was revealed. At that

moment, the Government decided to raise one, and

only one, defense: that Mr. Brooks’s motion was

untimely under § 2255(f)(3).

The Government was required to plead that

defense in the answer. Waiver is an affirmative

defense that must be raised in a responsive pleading.

Fed. R. Civ. P. 8(c)(1). Federal Rule of Civil Procedure

12(b) governs the presentation of defenses in a

responsive pleading: “Every defense to a claim for

relief in any pleading must be asserted in the

responsive pleading if one is required.” See also R. 12

of the Rules Governing § 2255 Proceedings (allowing

application of the Civil Rules to § 2255 motions).

The Government first asserted the defense of

waiver more than a year after it filed its answer, and

only after Davis confirmed that the § 924(c) conviction

was invalid. The district court decided that the

Government should not be penalized for waiting so

long because, until Davis was decided, the

Government believed it had a valid limitations

defense. In other words, the novelty of Davis excused

the Government’s failure to assert the defense before

November 2019, but the novelty of Johnson, Dimaya,

14

and Davis did not excuse Mr. Brooks’s failure to

anticipate and request an exception in the plea

agreement that would explicitly allow his § 2255

motion in the (presumably unanticipated) event that

one of his convictions turned out to be substantively

invalid.

This case calls for an assessment of the interests of

justice. Mr. Brooks—misadvised about the true nature

of the offense to which he pleaded guilty, and

admitting conduct that is not a crime under

§ 924(c)(3)(B), also signed a document waiving postconviction rights. The Government did not assert the

waiver at its first opportunity or even when it was

required by rule to do so. Before allowing the amended

pleading, the lower courts were supposed to consider

“whether justice so requires.” App. 13a. Here, justice

required granting Mr. Brooks’s § 2255 motion, rather

than dismissing it.

II. This Court should grant certiorari.

A. The circuits are divided about

“miscarriage of justice” exception.

the

In Garza, this Court recognized that some lower

courts applied a “miscarriage of justice” exception but

did not comment on the validity of that, or any other

exception to the enforceability of appellate waivers.

139 S. Ct. at 745 n.6 (quoting State v. Dye, 870 N.W.2d

628, 634 (Neb. 2015)).

The federal courts of appeals are divided over

whether a defendant can avoid dismissal by proving a

miscarriage of justice. The First, Second, Third,

Seventh, Eighth, Tenth, and D.C. Circuit all recognize

15

a miscarriage-of-justice exception. See United States v.

Teeter, 257 F.3d 14, 21–27 (1st Cir.2001); United

States v. Johnson, 347 F.3d 412, 415 (2d Cir. 2003);

United States v. Khattak, 273 F.3d 557, 559–63 (3d

Cir.2001); United States v. Adkins, 743 F.3d 176, 192–

93 (7th Cir. 2014); United States v. Guzman, 707 F.3d

938, 941 (8th Cir. 2013); United States v. Shockey, 538

F.3d 1355, 1357 & n.2 (10th Cir. 2008); United States

v. Guillen, 561 F.3d 527, 531 (D.C. Cir. 2009).

These courts recognize that the parties to the plea

agreement assume that any provision would be

interpreted

“against

a

general

background

understanding of legality,” that is, “that all promises

made were legal, and that the non-contracting ‘party’

who implements the agreement (the district judge)

will act legally in executing the agreement.” United

States v. Ready, 82 F.3d 551, 559 (2d Cir. 1996).

The Ninth Circuit does not recognize this

exception, on the theory that it is too “nebulous.”

United States v. Ligon, 461 F. App'x 582, 583 (9th Cir.

2011) (“Ligon asks the court to recognize a

‘miscarriage of justice’ exception to otherwise valid

waivers of appellate rights. The court declines the

invitation. This court does recognize certain

exceptions to valid appellate waivers, but a nebulous

‘miscarriage of justice’ exception is not among them.”)

(cleaned up).

Thus far, the Fifth Circuit has neither

acknowledged nor rejected the existence of the

exception. United States v. Barnes, 953 F.3d 383, 389

(5th Cir. 2020) (“Though some other circuits recognize

such an exception, we have declined explicitly either

to adopt or to reject it.”). But the court refused to apply

16

the exception here, despite the stereotypical case of

“miscarriage of justice” under this Court’s precedent:

conviction of a noncrime.

This conflict between the courts of appeals pertains

to an issue of great significance, meriting this Court

intervention. This Court could clarify whether a

defendant can avoid enforcement of a rights-waiver,

and could help bring uniformity to its contours by

addressing this situation.

B. Granting certiorari would allow the Court

to clarify the precedential status and

meaning of Grzegorczyk v. United States.

In June, a divided Court denied certiorari in

Grzegorczyk v. United States, 142 S. Ct. 2580 (2022).

Four Justices joined Justice Kavanaugh’s statement

respecting the denial of certiorari, 142 S. Ct. at 2580–

81, and three Justices joined Justice Sotomayor’s

dissent from denial of a grant, vacate, and remand

order. 142 S. Ct. at 2581–87.

At first glance, this seems like an easy question to

answer: there is a long and previously unbroken line

of authority explaining the denials of certiorari are not

precedent. This Court “rigorously insisted . . . again

and again; again and again” that denials of certiorari

are nonprecedential. Maryland v. Baltimore Radio

Show, 338 U.S. 912, 919 (1950) (Frankfurter, J.,

respecting denial of certiorari); Halprin v. Davis, 140

S. Ct. 1200, 1202 (2020) (Sotomayor, J., respecting

denial of certiorari); Robertson v. U.S. ex rel. Watson,

560 U.S. 272, 282 (2010) (Roberts, C.J., dissenting

from dismissal).

17

The Fifth Circuit used to agree. See Sunbeam Corp.

v. Masters of Miami, Inc., 225 F.2d 191, 196 (5th Cir.

1955).

Yet the Fifth Circuit has not only treated

Grzegorczyk as binding precedent, but as binding

precedent on a subject the Court was silent about. To

understand why, we need to delve into the details that

were unnecessary in a non-precedential decision

denying certiorari.

As the Seventh Circuit explained,

Grzegorczyk waived, among other rights, the

right to “all appellate issues that might have

been available if he had exercised his right to

trial.” Under the agreement, he could only

appeal the validity of his guilty plea and the

sentence imposed.

Grzegorczyk v. United States, 997 F.3d 743, 745 (7th

Cir. 2021) (emphasis added). But the defendantmovant in Grzegorczyk never challenged the guilty

plea, either on direct appeal or in § 2255 proceedings

in district court. Id. at 748. He waited until appellate

proceedings on his § 2255 motion before alleging that

anything was wrong with the plea, and that was too

late. Id. There is no significant discussion, in the

Seventh Circuit’s opinion or Justice Kavanaugh’s

statement about the terms of the plea agreement’s

appellate waiver.

The Seventh Circuit instead held that Grzegorczyk’s unconditional (and, throughout the § 2255 proceedings in district court, unchallenged) guilty plea

18

barred the claim. The Seventh Circuit says so on every

page of its opinion. Id. at 745, 746, 747, 748, 749.

Unlike Mr. Brooks, then, Grzegorczyk never told

the district court that the rule in Davis (and Johnson

and Dimaya) revealed that the plea itself was invalid.

Justice Kavanaugh’s statement that “the Seventh Circuit correctly concluded that the defendant’s unconditional guilty plea precluded any argument” based on

Davis was surely not a precedential repudiation of the

longstanding principle that a defendant should not be

induced to plead guilty to a noncrime.

Yet the Fifth Circuit not only gave Justice Kavanaugh’s statement precedential force; it did so about

a subject the statement did not even discuss or embrace:

As five Supreme Court justices recently

reaffirmed, however, plea waivers such as the

one entered here “preclude[ ] any argument

based on the new caselaw.”

United States v. Caldwell, 38 F.4th 1161, 1162 (5th

Cir. 2022). No other Court of Appeals has read

Grzegorczyk that way.

Here, the Fifth Circuit again held that Grzegorczyk

foreclosed Mr. Brooks’s “reliance on” Davis. App. 5a

(citing Grzegorczyk and Caldwell). So the precedent of

the Fifth Circuit now includes a principle drawn from

a misreading of a non-precedential Supreme Court

statement.

This Court’s decision-not-to-decide in Grzegorczyk

sheds no light on the validity of Mr. Brooks’s plea, plea

19

agreement, and waiver-of-postconviction rights. All

were “constitutionally invalid” because the district

court misadvised him about the “true nature” of 18

U.S.C. § 924(c). Bousley v. United States, 523 U.S. 614,

618–19 (1998). If he had been correctly advised, he

would not have pleaded guilty to a noncrime, accepted

the plea agreement requiring him to do so, or waived

his right to further review.

Respectfully submitted,

J. Matthew Wright

Counsel of Record

FEDERAL PUBLIC

DEFENDER’S OFFICE

500 South Taylor Street

Unit 110.

Amarillo, Texas 79101

(806) 324-2370

Matthew_Wright@fd.org

October 19, 2022