Reply Brief — David Everette, Petitioner v. New York

No. 25-5912

In the

Supreme Court of the United States

___________________________________________________________________

DAVID EVERETTE,

v.

Petitioner,

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

___________________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF NEW YORK,

NEW YORK COUNTY

___________________________________________________________________

REPLY BRIEF FOR PETITIONER

___________________________________________________________________

Will A. Page

Counsel of Record

Caprice R. Jenerson

David Bernstein

OFFICE OF THE APPELLATE DEFENDER

11 Park Place, 16th Floor

New York, New York 10007

(212) 402-4135

wpage@oadnyc.org

December 23, 2025

Counsel for Petitioner

TABLE OF CONTENTS

Page

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

REPLY TO BRIEF IN OPPOSITION ...................... 1

I.

A GVR is appropriate because the decision

below cannot be reconciled with Erlinger,

Apprendi, or Almendarez-Torres. ......... 3

II.

The equities favor a GVR....................... 6

III.

Alternatively, the Court should grant

plenary review to address the question of

retroactivity. ........................................... 9

CONCLUSION ........................................................ 11

ii

TABLE OF AUTHORITIES

Page(s)

United States Supreme Court Cases

Almendarez-Torres v. United States,

523 U.S. 224 (1998) ................................. passim

Apprendi v. New Jersey,

530 U.S. 466 (2000) ................................. passim

Boykin v. Alabama,

395 U.S. 238 (1969) .......................................... 4

Chaidez v. United States,

568 U.S. 342 (2013) ........................................ 10

Doe v. Dynamic Physical Therapy, LLC,

607 U.S. ---, No. 25-180, 2025 WL 3506945

(Dec. 8, 2025) .................................................... 2

Erlinger v. United States,

602 U.S. 821 (2024) ................................. passim

Fields v. Colorado,

145 S. Ct. 1136 (2025) ...................................... 1

Florida v. Nixon,

543 U.S. 175 (2004) .......................................... 4

Hurst v. Florida,

577 U.S. 92 (2016) ............................................ 4

iii

Page(s)

Lawrence on Behalf of Lawrence v. Chater,

516 U.S. 163 (1996) .......................................... 6

Pitts v. Mississippi,

607 U.S. ---, No. 24-1159, 2025 WL 3260171

(Nov. 24, 2025) ................................................. 2

Ring v. Arizona,

536 U.S. 584 (2002) .......................................... 4

Saffle v. Parks,

494 U.S. 484 (1990) ....................................... 5-6

Stutson v. United States,

516 U.S. 193 (1996) .......................................... 6

Teague v. Lane,

489 U.S. 288 (1989) ............................. 5-6, 9, 10

United States v. Booker,

543 U.S. 220 (2005) ................................... 10-11

New York Cases

People v. Hernandez,

43 N.Y.3d 591 (2025)........................................ 8

People v. Wright,

No. 70, 2025 WL 2979537

(N.Y. Oct. 23, 2025) .......................................... 8

iv

Page(s)

Other State and Lower Federal Cases

Commonwealth v. Shifflett,

335 A.3d 1158 (Pa. 2025) ................................. 7

Grant v. United States,

No. 8:24-CV-02029-WFJ-CPT,

2024 WL 4729193335

(M.D. Fla. Nov. 8, 2024) ................................. 10

Occhione v. Capra,

113 F. Supp. 3d 611 (E.D.N.Y. 2015) .............. 8

People v. Wiley,

570 P.3d 436 (Cal. 2025) .................................. 7

State v. Carlton,

328 A.3d 944 (N.J. App. Div. 2024) ................. 7

United States v. Saunders,

No. 23-6735-CR, 2024 WL 4533359

(2d Cir. Oct. 21, 2024) ................................... 7-8

Wainwright v. State,

411 So. 3d 392 (Fla. 2025).............................. 10

Washington v. Graham,

355 F. App’x 543 (2d Cir. 2009) ....................... 8

v

Page(s)

Additional Resources

Cadoff et al., Criminal Convictions in New York

State, 1980-2021, Data Collaborative for

Justice at John Jay College (May 2023),

available at https://datacollaborativeforjustice.org/wp-content/uploads/2023/04/

ConvictionsReport-2.pdf .................................. 8

Chad Flanders, “The Impact of Erlinger v. United

States on State Recidivist Sentencing Laws,”

82 Wash & Lee L. Rev. Online 456 (Apr. 28,

2025), available at https://scholarlycommons.

law.wlu.edu/wlulr-online/vol82/iss6/2 ............. 9

Number of people in prison in 2020 from

each New York county, Prison Policy Initiative,

available at https://www.prisonpolicy.org/

origin/ny/2020/county.html .............................. 8

REPLY TO BRIEF IN OPPOSITION

Respondent concedes that New York courts are

struggling to faithfully apply this Court’s mandate

from Erlinger v. United States, 602 U.S. 821 (2024), to

follow Apprendi v. New Jersey, 530 U.S. 466 (2000).

Opp. 14. As petitioner has demonstrated, the state

courts are unwilling to accept the narrowness of the

Almendarez-Torres v. United States, 523 U.S. 224

(1998), exception and recognize that “any fact that increases the penalty for a crime,” except the fact of a

prior conviction, “must be submitted to a jury[] and

proved beyond a reasonable doubt[.]” Apprendi, 530

U.S. at 490. See Pet. 7, 11.

Unconcerned for the individuals being subjected

to this arbitrary state-of-play, respondent nevertheless argues that this Court should continue to let the

New York lower courts flounder, that the “unsettled

nature of this legal question in New York weighs

heavily in favor of further percolation[.]” Opp. 14-15.

These arguments were squarely rejected in Fields v.

Colorado, 145 S. Ct. 1136 (2025), and should be rejected here. 1 By summarily reversing in Fields, this

Court efficiently and forcefully told Colorado courts to

engage with Erlinger’s mandate, rejecting Colorado’s

bid to “let these state-law-specific issues percolate”

along with the suggestion that questions of harmlessness controlled. See Brief in Opposition at 15, 11,

Fields v. Colorado (Docket No. 24-5460).

1 Respondent does not address Fields, the only petition to

receive a summary reversal from this Court post-Erlinger on issues of state sentencing law.

2

For all of respondent’s handwringing about

whether this case is a “poor vehicle” for addressing

these Sixth Amendment concerns, Opp. 2, 10, petitioner is seeking a summary reversal. The decision

below is so manifestly erroneous on Apprendi, on

waiver, and on retroactivity that GVR is proper.

Simply put, tolling must be a jury question, and the

State’s attempt to recast it as a mitigating rather

than aggravating factor borders on Orwellian. Similarly, Mr. Everette could not have waived his rights

in a proceeding that did not respect his rights. Finally, the only area that could warrant closer review

by this Court is retroactivity, given the tension between Erlinger’s professed “on all fours” application

of Apprendi and commentators’ perception that Erlinger effectuated a sea change for state courts. But

the equities here favor GVR or summary disposition.

Indeed, summary reversals serve as critical reminders to the States to respect the principles of federalism and to follow federal constitutional law. Doe

v. Dynamic Physical Therapy, LLC, 607 U.S. ---,

No. 25-180, 2025 WL 3506945, at *1 (Dec. 8, 2025)

(“The Judges in every State are bound to follow federal law, any Thing in the Constitution or Laws of any

state to the Contrary notwithstanding.”) (cleaned up);

see also Pitts v. Mississippi, 607 U.S. ---, No. 24-1159,

2025 WL 3260171, at *3 (Nov. 24, 2025) (GVR where

“arguments and conclusions fall well short of the procedures and findings” required by longstanding precedent). Such a reminder is necessary here. A GVR is

warranted or, alternatively, targeted plenary review.

3

I.

A GVR is appropriate because the decision

below cannot be reconciled with Erlinger,

Apprendi, or Almendarez-Torres.

a. Tolling is a jury question.

Determining how long someone was imprisoned

after a conviction exceeds the “limit on the scope of

Almendarez-Torres,” which allows a judge to “do no

more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.” Erlinger, 602 U.S. at 838

(quoting Mathis v. United States, 579 U.S. 500, 51112 (2016)). Because respondent cannot hide from the

nature of the fact-finding involved—“[t]o determine

how far back to look for qualifying predicate convictions, judges can make findings about the dates of a

defendant’s prior periods of incarceration,” Opp. 1—

the State hopes to recast this determination as mitigating to avoid Apprendi’s mandate. See Opp. 15-16.

But no amount of linguistic slight-of-hand can change

the reality of the sentencing scheme.

The tolling findings are the gateway to using convictions as predicates—as aggravators. At sentencing, after the prosecutor attempts to demonstrate the

actual period of incarceration that occurred for their

chosen predicates, the sentencing judge decides if the

time adds up to make the conviction recent. Respondent’s Orwellian argument thus falters under its own

weight when discussing the result of the judicial factfinding: “If the sentence on the prior felony falls

within the extended lookback period, that prior conviction can be used as a basis to impose an enhanced

sentence.” Opp. 4 (emphasis added).

4

As Justice Scalia warned in his concurrence in

Ring v. Arizona: “the fundamental meaning of the

jury-trial guarantee of the Sixth Amendment is that

all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing

factors, or Mary Jane—must be found by the jury beyond a reasonable doubt.” 536 U.S. 584, 610 (2002).

Tolling is no exception.

b. Silence is not a knowing, intelligent, and

voluntary waiver of a constitutional right.

Respondent argues that Mr. Everette’s “implicit

admissions alone made it immaterial whether the

judge or a jury determined the length of his prior incarceration,” Opp. 13—akin to, yet beyond, the erroneous decision below, (2a). No more needs to be said

of this argument than to reiterate this Court’s explicit

holdings from Boykins v. Alabama, 395 U.S. 238

(1969), and its progeny: one “cannot presume a waiver

of these [] important federal rights from a silent record,” and even “a defendant’s tacit acquiescence” in an

unconstitutional process will not suffice. Id. at 243;

Florida v. Nixon, 543 U.S. 175, 187-88 (2004). The

State “has not explained how [Mr. Everette’s] alleged

admissions accomplished a [] waiver” of his jury trial

rights. Hurst v. Florida, 577 U.S. 92, 100 (2016). 2

2

Respondent claims that it “appears” petitioner “abandoned” his request to dispute aspects of the predicate statement,

without referencing defense counsel’s explicit statement at sentencing: “Except from what I said in the last hearing, defendant

challenged both of those convictions.” (64a-65a; see also 25a.)

5

c. If Erlinger was “nearly on all fours” with

Apprendi and Alleyne, then Erlinger could

not have announced a “new” rule.

This Court thoughtfully explained in Erlinger

that Apprendi and Alleyne dictated the outcome of the

case: that a jury had to “resolve ACCA’s occasions inquiry unanimously and beyond a reasonable doubt[.]”

Erlinger, 602 U.S. at 835 (“this case is as nearly on all

fours with Apprendi and Alleyne as any we might imagine”). And, of course, the oft-repeated “limit on the

scope of Almendarez-Torres” aided in that result. Id.

at 838. It comes as no surprise then that the District

Attorneys Association of the State of New York told

New York’s high court that Erlinger “did not announce a new rule[;]” it “applied the longstanding Apprendi rule to the particular facts of that case.” (86a.)

The Manhattan District Attorney, however, now

retreats, claiming that because prior state precedent

must be overruled to finally accept the narrowness of

Almendarez-Torres, that change in the law would “no

doubt” create a new rule. Opp. 11-12 (quoting Saffle

v. Parks, 494 U.S. 484, 488 (1990)). That is not how

this Court considers questions of retroactivity: “a case

announces a new rule when it breaks new ground or

imposes a new obligation on the States[.]” Teague v.

Lane, 489 U.S. 288, 301 (1989); see Saffle, 494 U.S.

at 488 (“a new rule” is one that is “not ‘dictated by

Post-conviction counsel for the defense concluded, after requesting all possible sentencing appearances, that the “hearing” must

have been off-the-record. The State’s conclusory assertions to

the contrary are unsupported conjecture.

6

precedent existing at the time the defendant’s conviction became final’”) (quoting Teague, 489 U.S. at 301).

Certainly Apprendi (2000) and Alleyne (2013)

were decided long before petitioner’s conviction became final in 2017—and “[t]he principles” underpinning the two cases “are so firmly entrenched” that this

Court has “overruled several decisions inconsistent

with them.” Erlinger, 602 U.S. at 833-34. The problem for jurists in New York is ongoing “confusion

about Almendarez-Torres [that] has played a role in

their misapprehension about what the Constitution

requires.” Id. at 842 n.4. Nevertheless, clarifying

confusion about the rules does not change the rules.

II.

The equities favor a GVR.

Rather than accepting respondent’s invitation to

let New York courts continue to struggle (and fail), a

GVR will guide the lower courts and protect Mr. Everette’s constitutional rights. See Stutson v. United

States, 516 U.S. 193, 196 (1996) (“When a litigant is

subject to the continuing coercive power of the Government in the form of imprisonment, our legal traditions reflect a certain solicitude for his rights . . .”).

“[A] GVR order conserves the scarce resources of this

Court that might otherwise be expended on plenary

consideration, assists the court below by flagging a

particular issue that it does not appear to have fully

considered, . . . and alleviates the ‘[p]otential for unequal treatment’ that is inherent in [the] inability to

grant plenary review of all pending cases raising similar issues[.]” Lawrence on Behalf of Lawrence v.

Chater, 516 U.S. 163, 167 (1996) (citation omitted).

Here, it helps ensure equal treatment of Mr. Everette

7

and the federal petitioners that received reconsideration of sentencing errors post-Erlinger. See Pet. 12.

State courts that have been willing to faithfully

apply Erlinger’s mandate have corrected their

longstanding misapprehension about what could be

accomplished through the Almendarez-Torres lens.

See, e.g., People v. Wiley, 570 P.3d 436, 439 (Cal. 2025)

(where sentencing court found “two different aggravating facts: the increasing seriousness of his prior

convictions and his unsatisfactory performance on

previous grants of probation,” Erlinger “compels the

conclusion that Wiley was entitled to a jury trial on

these aggravating facts as well”); Commonwealth v.

Shifflett, 335 A.3d 1158, 1175 (Pa. 2025) (“we conclude that a defendant’s previous acceptance of [a diversion program], on its own, does not fall within the

prior conviction exception contemplated in Apprendi

and Alleyne;” it “is a fact that must be submitted to a

jury and proven beyond a reasonable doubt”); State v.

Carlton, 328 A.3d 944, 953 (N.J. App. Div. 2024)

(“Without question, Erlinger abrogates the [old]

rule . . . with respect to the dates of convictions and a

defendant’s age when the offenses were committed.”);

see also id. at 970-71 (recognizing that “the defendant

must admit to the facts establishing persistent-offender eligibility in a manner consistent with the entry of a knowing and voluntary guilty plea”); United

States v. Saunders, No. 23-6735-CR, 2024 WL

4533359, at *2 (2d Cir. Oct. 21, 2024) (“Erlinger abrogated Second Circuit precedent,” namely United

States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001)

(where circuit “read Apprendi as leaving to the judge,

consistent with due process, the task of finding not

8

only the mere fact of previous convictions but other

related issues”)). 3

New York’s high court and the intermediate

courts, however, continue to dodge the issue. People

v. Wright, No. 70, 2025 WL 2979537, at *7 (N.Y. Oct.

23, 2025) (“we do not consider defendant’s argument

that, in light of the intervening decision in Erlinger,

he was constitutionally entitled to have a jury determine the tolling calculation”); People v. Hernandez, 43

N.Y.3d 591, 597 (2025) (same, finding argument unpreserved). The Appellate Division, First Department, which found this very case presented no new

issues to review, (4a), covers Manhattan and the

Bronx—for a total of three million residents. And

those two counties are in the top three contributing to

New York’s prison populations. 4 Thus, contrary to respondent’s dubious suggestion that the courts will

weigh-in someday soon, Opp. 15 (citing People v.

Indeed, New York’s longstanding misapplication of Apprendi and Almendarez-Torres has thwarted habeas review. See

Washington v. Graham, 355 F. App’x 543, 545 (2d Cir. 2009); Occhione v. Capra, 113 F. Supp. 3d 611, 633-34 (E.D.N.Y. 2015)

(“Section 70.08 of New York Penal Law falls within the prior conviction exception to Apprendi.”).

3

4 See Number of people in prison in 2020 from each New

York county, Prison Policy Initiative, available at

https://www.prisonpolicy.org/origin/ny/2020/county.html. And,

of course, Manhattan (New York County) is a leader of racial

disparity in criminal convictions, with Black defendants convicted as compared to White defendants 14:1. Cadoff et al.,

Criminal Convictions in New York State, 1980-2021, Data Collaborative for Justice at John Jay College (May 2023), at 10,

available

at

https://datacollaborativeforjustice.org/wp-content/uploads/2023/04/ConvictionsReport-2.pdf. In a very real

sense, sentencing justice in New York City is racial justice.

9

Moore, recently argued in the First Department,

where the Erlinger issue is not preserved for review

because the Manhattan District Attorney had conceded the issue below), the time for this Court’s GVR

intervention is now.

III.

Alternatively, the Court should grant plenary

review to address the question of retroactivity.

Perhaps due to Justice Kavanaugh’s footnote suggestion in dissent, presuming that “the Teague rule

will [] bar [a] defendant from raising” Erlinger-Apprendi arguments “in collateral proceedings,” a number of commentators and courts have been confused

about retroactivity. Compare Erlinger, 602 U.S.

at 859 (Kavanaugh, J., dissenting), with id. at 835

(majority) (“this case is as nearly on all fours with Apprendi and Alleyne as any we might imagine”). For

example, one commentator posits:

There will be those defendants [with]

sentences that were enhanced via an

unconstitutional method (judge finding

the facts rather than a jury) but whose

convictions have become final and are

no longer pending. Is there any hope

for those defendants? It seems not.

Chad Flanders, “The Impact of Erlinger v. United

States on State Recidivist Sentencing Laws,” 82 Wash

& Lee L. Rev. Online 456, 474 (Apr. 28, 2025). 5

5 Available at https://scholarlycommons.law.wlu.edu/wlulronline/vol82/iss6/2.

10

These “retroactivity” analyses have presumed

that Erlinger is a new rule, rather than just another

admonishment from this Court against expanding Almendarez-Torres. See, e.g., Grant v. United States,

No. 8:24-CV-02029-WFJ-CPT, 2024 WL 4729193, at

*2 (M.D. Fla. Nov. 8, 2024) (“Erlinger announced a

new rule of criminal procedure that does not apply

retroactively on collateral review”); Wainwright v.

State, 411 So. 3d 392, 399 (Fla. 2025) (“even if Erlinger constitutes a change of law, it does not apply

retroactively”). Petitioner, as explained above, suggests the broad rule has always been Apprendi with

only one narrow exception. Cf. Chaidez v. United

States, 568 U.S. 342, 348 (2013) (“when all we do is

apply a general standard to the kind of factual circumstances it was meant to address, we will rarely

state a new rule for Teague purposes”).

Thus, while a GVR here would comport with the

majority’s decision in Erlinger and encourage lower

courts to engage with the limitations of AlmendarezTorres rather than continue to slowly encroach upon

the Sixth Amendment, plenary review is an option if

the Court wishes to explore the issue of retroactivity.

***

“As Blackstone put it: However convenient these

[new methods of trial] may appear at first, (as doubtless all arbitrary powers, well executed, are the most

convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice,

are the price that all free nations must pay for their

liberty in more substantial matters[.]” United States

11

v. Booker, 543 U.S. 220, 244 (2005) (cleaned up, emphasis in original).

Mr. Everette deserves genuine consideration of

his challenge to his sentence, of the constitutional violation that comes with judicial fact-finding of periods

of incarceration. This should be straightforward, but

since New York courts have ignored the problem, this

Court must intervene.

CONCLUSION

The Court should grant the petition, vacate the

decision below, and remand for further review in light

of Erlinger and well-established principles of waiver.

Alternatively, this Court should grant plenary review

to consider whether the applicability of Erlinger’s

mandate requires a retroactivity analysis or simply

fidelity to Apprendi.

Respectfully submitted,

Will A. Page

Counsel of Record

Caprice R. Jenerson

David Bernstein

OFFICE OF THE APPELLATE

DEFENDER

11 Park Place, 16th Floor

New York, New York 10007

(212) 402-4135

wpage@oadnyc.org

December 23, 2025