Amicus Curiae Brief — Hohn v. United States

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Supreme Court, U.S.

FILED

AUG 12 1997

No. 96-8986

CLERK

In the Supreme Court of the United States

October Term, 1996

Arnold F. Hohn,

Petitioner,

Vv.

United States of America,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS

IN SUPPORT OF THE PETITIONER

Lisa Kemler

Zwerling & Kemler, P.C.

108 North Alfred Street

Alexandria, Virginia 22314

(703) 684-8000

Larry Yackle, Counsel of Record

Boston University School of Law

765 Commonwealth Avenue

Boston, Massachusetts 02215

(617) 353-2826

. ~H )

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............2e-e000:. iii

INTEREST OF THE AMICUS ..........-0.ee000- 1

QUESTIONS PRESENTED ...........ceeeceeeees 2

STATEMENT OF THE CASE ..........-2eseee005 2

REMGUREIUE 0 ccc ccccsecsccsovcccccccccccccccce 2

L THE CIRCUIT COURT’S

CONSTRUCTION OF §2253(c)(2)

CANNOT BE RECONCILED WITH

OTHER PROVISIONS OF THE AEDPA

AND THE ACT AS A WHOLE .............-006- 3

IL. THE CIRCUIT’S CONSTRUCTION

OF §2253(c)(2) RAISES SERIOUS

CONSTITUTIONAL QUESTIONS ..............- 10

CONCLUSION .......cccccccccccccccccscceees 14

TABLE OF AUTHORITIES

Cases Page

Coleman v. United States,

106 F.3d 339 (10th Cir. 1997) ............. 5. 9

Davis v. Jacobs,

4560S. 043 C0508). . is CRAIG 11

Felker v. Turpin,

316 G.C2. S093 (IGSD) ©. io. ccs ccicee st eves 11

Herman v. Johnson,

98 F.3d 171 (Sth Cir. 1996) ................. 13

Hill v. United States,

368 U.S. 424 (1962) ...... 0... eee eee eee 4

In re Blackshire,

98 F.3d 1293 (11th Cir. 1996)................ 9

Lozada v. United States,

107 F.3d 1011 (2d Cir. 1997) ............... 13

Nunez v. United States,

96 F.3d 990 (7th Cir. 1996) .................. 9

Reed v. Farley,

reel Fy; [Pee Trower rs 4

Santana v. United States,

98 F.3d 752 (3d Cir. 1996) ................. 13

United States v. Campos,

932 F. Supp. 1034 (W.D. Tenn. 1996) ......... 13

United States v. Klein,

80 U.S. (13 Wall.) 128 (1871)............... 12

United States v. Lorentsen,

106 F.3d 278 (9th Cir. 1997)................. 9

United States v. Orozco,

103 F.3d 389 (Sth Cir. 1996) ................ 13

United States v. Sioux Nation of Indians,

448 UG. FFE GUE cok ccebdsccccddvcuwerss 12

ili

Constitutional Provisions and Statutes

U.S. Const. art. M....................... 10, 12-13

IMR OWS 55 ais devedvcvecocucs,... 2

EEE 4

SB USC. $2244... 4-5, 7-8

IN Wn dod od os views eeeaee cc, passim

PI Sos sis cede ccccecccccccce, 4-8, 12

I esas wiecancee ce cae: 1, 3-8, 11

EE SET 6-8

EEE 7

INTEREST OF AMICUS*

The National Association of Criminal Defense Lawyers

(NACDL) is a non-profit corporation with a membership of

more than 9,000 attorneys and 28,000 affiliate members in 50

states. The American Bar Association recognizes NACDL as

an affiliate organization and awards it full representation in its

House of Delegates.

NACDL was founded over 35 years ago to promote

study and research in the field of criminal law, to disseminate

and advance knowledge of the law in the area of criminal

practice; and to encourage the integrity, independence, and

expertise of defense lawyers in criminal cases. NACDL seeks

to defend individual liberties guaranteed by the Bill of Rights

and has a keen interest in the correctness and fairness of

criminal convictions. Among NACDL’s objectives are to

promote the proper administration of justice and to ensure that

Statutes are construed and applied in accordance with due

process.

Letters from the parties to this case expressing their

consent to the filing of this brief are on file with the clerk.

*Counsel for neither party authored this amicus curiae

brief, in whole or in part. No person or entity, other than the

amicus curiae, has made a monetary contribution to the

preparation or submission of this brief.

QUESTIONS PRESENTED

1. Whether a federal prisoner who demonstrates that he

is incarcerated for conduct that this Court conclusively

determined does not constitute a federal crime has made “a

substantial showing of the denial of a constitutional right”

warranting issuance of a certificate of appealability under 28

U.S.C. §2255.

3. Whether a defendant who possesses a firearm and

drugs in close proximity to each other, but neither bears the

firearm on his person, nor otherwise transports it, commits the

crime under 18 U.S.C. §924(c) of “carr[ying]” a firearm

“during and in relation to” the predicate offense of possession

of the drugs with intent to distribute them.

STATEMENT OF THE CASE

circuit judgment this Court is asked to review.

ARGUMENT

This case is certworthy not only for the reasons the

petitioner ably asserts, but for two other reasons as well. First,

2 .

the circuit court’s construction of the adjective “constitutional”

in §2253(c)\(2), if accepted, would undermine the correct

interpretation of other provisions in the AEDPA and, in the

end, would frustrate an accurate, sensible, coherent

interpretation of the Act as a whole. Second, the circuit court’s

Unfortunately, the circuit court below acted too quickly

in a pro se case, looked only at a single term in a single

provision of the new Act, jumped to an unwarranted conclusion

regarding its meaning in the abstract, and made a serious

mistake. That error should be corrected before it does further

damage.

Since Congress enacted the AEDPA just over a year

ago, the lower courts have wrestled with the meaning of the

adjective “constitutional” —as that modifier is used by the Act

in a variety of contexts. The pressure has mounted in recent

weeks, as prisoners have rushed to meet the Act’s new filing

deadlines. Widespread difficulty and injustice will result if the

system goes much longer without this Court’s authoritative

guidance on what is, in fact, a threshold question in many

§2255 and habeas corpus cases. Not only petitioners’

entitlement to appellate review, but many other crucial matters

are at stake: the computation of filing deadlines and

petitioners’ right to evidentiary hearings and stays of

execution.

L THE CIRCUIT COURT’S CONSTRUCTION OF

§2253(c\2) CANNOT BE RECONCILED WITH OTHER

PROVISIONS OF THE AEDPA AND THE ACT AS A

WHOLE

Other key provisions of the Act also employ the

adjective “constitutional.” If that term is understood in those

instances to mean what the circuit court misconstrues it to

mean in §2253(c)(2), the various working parts of the full Act

cannot function, individually or together in an integrated

system.

According to unamended language in §2255, a federal

prisoner is entitled to seek relief on the ground that he or she is

in custody under a sentence that was imposed in violation of

the Constitution “or laws” of the United States, a sentence “in

excess of the maximum allowed by law,” or a sentence

“otherwise subject to collateral attack.” And according to

similarly unamended text in §2241(c)(3) and §2254(a), a state

prisoner is also entitled to seek habeas corpus relief on the

ground that he or she is in custody in violation of the “laws” of

the United States. Clearly, then, the new Act makes no attempt

to banish federal nonconstitutional claims from the purview of

federal collateral remedies.’

By the circuit court’s account, however, the Act draws

a clear constitutional/nonconstitutional distinction to control

the way in which cases are processed after they enter the

federal courthouse door. That position is untenable. The Act

uses the “constitutional” designation in some contexts in which

it cannot possibly mean to exclude nonconstitutional matters.

Thus the Act plainly uses the modifier “constitutional”

interchangeably with “federal” or, perhaps, as a synonym for

“fundamental” or “cognizable.”

Under a new provision in the Act, §2244(d)(1)(C), the

: See Hill v. United States, 368 U.S. 424, 428 (1962) (explaining that

fundamental nonconstitutional defects will suffice in 2255 cases), Reed v.

Farley, 512 U.S. 339 (1994) (confirming that state prisoners can obtain

habeas relief on a showing of serious violations of federal nonconstitutional

law).

asserted was initially recognized.” If the circuit court is correct

in its construction of the adjective “constitutional” in

an event that never occurs in some cases (i.e., cases in which

en or pa ~ahy ‘ aaniin

). That, however, i i

§2244(d)(1)(C) cannot sensibly bear. ms =

_ Like §2244(d)(1)(C), §2255 (as amended by the Act

establishes a fling period for federal prisoners, which runs ip

some cases from the date on which a “right” is “newly

recognized.” In that instance, §2255 does not use the modifier

constitutional.” If the appearance of the “constitutional”

modifier in §2244(d)(1)(C) excludes nonconstitutional claims

by implication, it follows that the omission of the same term

from §2255 includes nonconstitutional claims. The result is

that the filing period in §2255 cases must be geared to the

establishment of nonconstitutional principles, while the parallel!

deadline for habeas petitions demands a purely constitutional

footing. Those two provisions cannot sensibly be read to

establish such an obvious inconsistency.

Another new provision, §2254(e), governs the federal

courts’ authority to conduct evidentiary hearings with respect

to habeas petitions by state prisoners. Under subparagraphs

(AX(i) and (B) of §2254(e)(2), prisoners who failed to develop

the facts in state court can obtain a federal hearing to pursue

constitutional” matters—either claims that rely on new rules

of “constitutional” law, or evidence that would have convinced

the jury to acquit,but for “constitutional” error.

If the circuit court’s interpretation of the

“constitutional” adjective in §2253(c)(2) is correct, it must

follow that the same construction must be placed on that

identical term in §2254(e)(2). That means, however, that state

habeas corpus petitioners who advance perfectly cognizable

nonconstitutional claims for relief (but failed to develop the

relevant facts in state court) are out of luck in federal

court—no matter how “new” a claim may be, no matter how

difficult it would have been to discover its factual predicate

when the case was before the state courts, and, indeed, no

matter how closely the claim is linked to innocence. This, on

the inconsistent theory that only purely “constitutional” claims

need apply for fact-finding in federal court. That cannot be

what §2254(e) means.

Any such reading of §2254(e) conflicts with settled law

governing hearings in §2255 cases. The new Act's

amendments to §2255 do not address hearings and thus leave

previous law in this respect intact. Of course, federal district

courts can conduct fact-finding hearings regarding

nonconstitutional claims raised by federal prisoners.

Forbidding evidentiary hearings in habeas cases

presenting nonconstitutional claims would also conflict with

related provisions in Chapter 154 of the Act, which governs

death penalty cases in qualifying states. Under §2264(b) of

that new chapter, federal courts are expressly instructed to

adjudicate prisoners’ claims “subject to” §2254(e). Plainly,

then, §2254(e) can bear only a construction that can be

reconciled, in turn, with the provisions in Chapter 154.

Under §2262(b)(3), prisoners can sustain a stay of

execution if they make a substantial showing of the denial of “a

Federal right.” Here again, if the appearance of the adjective

“constitutional” in §2253(c)(2) precludes nonconstitutional

claims, it must follow that the omission of that modifer from

§2262(b) includes nonconstitutional claims. That means,

however, that §2262(b) permits a prisoner to preserve a stay of

execution on the strength of a nonconstitutional claim, even as

a sister provision of the same Act, §2254(e), systematically

refuses claims of that nature a federal evidentiary hearing.

Under §2264(a)(2), prisoners who are subject to

Chapter 154 can advance a claim based on a “new Federal

right” (not necessarily “constitutional” in nature)}—despite

procedural default with respect to that claim in state court.

And, under §2264(a)(3), prisoners can press newly discovered

facts related to any “claim” (again, not necessarily

“constitutional” in character). By the circuit court’s account of

the adjective “constitutional,” however, nonconstitutional

claims are systematically denied federal evidentiary hearings.

If that view is accepted, it must follow that §2264 excuses a

prisoner's default with respect to a nonconstitutional claim and,

indeed, instructs a federal habeas court to adjudicate that claim

on the merits, but (at the same time and by virtue of the same

Act), §2254(e) bars the court from taking evidence regarding

the claim. That cannot be what §2264(a) means.

Finally, under §2244(b)(2)(A), state prisoners can file

a second or successive petition in some instances, provided

Og ee “new tule” of “constitutional” law. Similarly,

under §2255, federal prisoners, too, can press “new rule”

claims described as “constitutional.” By the circuit court’s

claims—no matter how “new” they may be. That cannot be

what §2244(b)(2)(A) and §2255 mean.”

Consider in this connection that, with respect to

innocence-related claims, the successive petition provision in

§2255 omits any reference to the “constitutional” adjective. So

prisoners who press a nonconstitutional claim are entitled to

procesd—provided they link that kind of claim to innocence in

the manner prescribed.’ It is inconceivable, then, that in the

same breath §2255 flatly bars successive petitions advancing

“new rule” claims that are nonconstitutional in nature.

Since prisoners are now filing successive habeas

petitions and §2255 motions that are controlled by the new Act,

this is where the erroneous case law is developing most

. Together, §2262(b)(3) and (c) have it that if a prisoner's claim is

rejected, no other federal court can thereafter issue a stay—unless the

prisoner meets the additional standards for filing a second or successive

petition established by §2244(b). _iIf, however, §2244(b) unilaterally

excludes nonconstitutional claims, §2262 must mean that a stay can remain

in place on the basis of a nonconstitutional claim, even though another court

would be barred from issuing a new stay unless something purely

“constitutional” is offered. That cannot be what §2262 means.

: This is scarcely surprising, a nonconstitutional claim touching

innocence is an excellent candidate for a second or successive §2255

motion. Yet by allowing such a claim to be advanced im a successive

motion, §2255 rejects any clean constitutional/nonconstitutional basis of

dntinntion.

Of course, the AEDPA does establish restrictions on multiple

collateral applications. The point is that those restrictions go not to the

substantive claims that can be advanced, but rather to the abusive manner

in which some prisoners attempt to proceed. They bar not federal claims of

a particular (nonconstitutional) nature, but federal claims of any nature—if

those claims are pressed in needlessly repetitive collateral actions.

rapidly—much of it explicitly in reliance on the Eighth

Circuit’s misconstruction of the modifier “constitutional” in

this case.‘

To sum up, the circuit’s interpretation of the adjective

“constitutional” ascribes to the AEDPA a purpose to create a

series of arbitrary, Byzantine snarls in the federal courts’

handling of claims that plainly are cognizable in collateral

proceedings. By the circuit’s account, a petitioner who

advances a purely “constitutional” claim is free to file a

collateral petition, so long as he meets one of the filing

deadlines established by the Act, and is equally entitled to

federal fact-finding, a stay of execution, and (if necessary)

appellate review—provided he meets the standards prescribed

for those ordinary tools of effective adjudication.

By contrast, according to the circuit, a petitioner who

advances a nonconstitutional c/aim faces an entirely different

landscape. He is free to file a petition, but he must meet a

filing deadline that takes no account of how recently his claim

materialized. This is so not because anyone thinks the

petitioner should have anticipated a “new” nonconstitutional

claim, but only because his claim is, by nature,

nonconstitutional. If the facts supporting his claim were not

developed in state court, the petitioner cannot obtain a federal

hearing even if he meets the standards the Act establishes for

determining whether procedural default in state court should be

excused. This is so not because anyone thinks that the

petitioner could have developed the facts previously, but only

. E.g., Coleman v. United States, 106 F.3d 339 (10th Cir. 1997),

United States v. Lorentsen, 106 F.3d 278 (9th Cir. 1997), In re Blackshire,

98 F.3d 1293 (11th Cir. 1996); Nunez v. United States, 96 F.3d 990 (7th

Cir. 1996).

because his claim is nonconstitutional in character. If the

petitioner needs a stay of execution, he may get one. But the

district court may be unable to hold a hearing to determine his

claim responsibly—again, only because the claim falls in the

nonconstitutional category. Finally, of course, if the district

court rules unfavorably, the petitioner is barred from seeking

appellate review—again, not because anyone has concluded

that his claim is frivolous and does not warrant appellate

consideration, but because it is nonconstitutional in nature.

Such an internally inconsistent maze of arbitrary traps

is nothing to ascribe to the United States Congress or a new

statute meant to bring good sense, order, and efficiency to the

system. The AEDPA may not be perfect. But it is not Catch

22.

The only sensible construction that can be placed on the

Act is that it employs the adjective “constitutional” to denote

matters that are cognizable in federal collateral

proceedings—not formalistically to foreclose matters that are

cognizable, but are nonetheless nonconstitutional in character.

The reason is plain enough. The primary purpose of the Act is

to make federal habeas litigation more efficient, virtually all

the claims raised by state prisoners are constitutional in nature,

and the Act simply employs that designation because it is

usually accurate.

IL THE CIRCUIT’S CONSTRUCTION OF

§2253(c)(2) RAISES SERIOUS CONSTITUTIONAL

QUESTIONS

Just as it makes sense to construe the AEDPA in a way

that avoids irrational, freakish results, it equally makes sense

to read the new Act in a way that avoids serious constitutional

questions under Article Il. Yet the circuit court’s

interpretation bristles with constitutional difficulty. By the

circuit court’s account of §2253(c)(2), all prisoners, state and

federal, can press nonconstitutional claims at the district level,

but not higher. District court judgments on nonconstitutional

federal claims are, then, effectively final in some instances.

Making a single district judge the sole arbiter of

nonconstitutional federal claims would not only be novel. It

would invite serious constitutional objections. Appellate

review at the circuit level and, indeed, in this Court, serves

both to correct errors below and to ensure a uniform

interpretation of federal law. If, in habeas and §2255 cases

invulnerable to review, both those values are sacrificed. In the

case of §2255 motions, the claims at stake were not typically

available at trial or on appeal, but are entirely

fresh—cognizable for the first time in collateral proceedings.

Making district court judgments final with respect to claims of

that kind places the responsibility of giving federal law its

authoritative interpretation in the hands of a single individual.*

Moreover, the arrangement the circuit court ascribes to

§2253(c)(2) is not outcome-neutral. For §2253 does not

require the respondent (i.e., the state or the federal government)

to obtain a certificate before appealing a judgment in the

prisoner's favor. If §2253 permits government appeals in cases

’ This Court might still reach down for a case by some extraordinary

means—perhaps its jurisdiction to entertain habeas petitions as an

“original” matter, see Felker v. Turpin, 116 S.Ct. 2333 (1996), or its

authority under the All-Writs Act to issue the common law writ of certiorari.

See Davis v. Jacobs, 454 U.S. 911 (1981). Yet the formal availability of

that kind of avenue in an extraordinary case scarcely defuses the problems

cases.

involving nonconstitutional claims, but precludes prisoner-

initiated appeals, this newly amended statute skews the results

that Article III courts can reach on federal issues. Errors that

favor prisoners are subject to review and may be corrected, but

errors that favor the government are insulated from review and

may stand. That kind of legislative manipulation of judicial

outcomes has been invalid for over a century.°

Nothing of this sort occurred prior to the circuit court’s

extraordinary construction of the AEDPA’s amendment to

§2253. Before the amendment, disappointed habeas

petitioners proceeding under §2254, but not governmental

respondents, were required to obtain a certificate as a condition

for appellate review. Yet at that time §2253 did not employ the

“constitutional” adjective and thus established only a merits-

related screening test to ensure that prisoners did not advance

frivolous claims (of any cognizable nature) on appeal. That

regime was one-sided, to be sure, but it insulated the appellate

courts from meritless claims—not an entire category of —

cognizable claims, irrespective of their merit. Gatekeeping

devices that detect worthless claims are familiar and perfectly

valid. The arrangement the circuit court’s judgment here

reflects is not of that order.

It is one thing to require prisoners to show some

baseline substance to their appellate claims before allowing

them to proceed, but to assume that state officials will police

themselves. It is quite another to refuse to allow prisoners to

advance plainly meritorious claims merely because those

. United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). See United

States v. Sioux Nation of Indians, 448 U.S. 371, 404 (1980)(explaining that

Klein faulted a statute that forced this Court to decide a case in the

government's favor).

;

claims are nonconstitutional in nature, but to open the federal

appellate courts’ doors in the same kind of case—if the warden,

rather than a prisoner in gaol, comes knocking. Yet that is

The circuit court below held that certificates cannot be

issued with respect to nonconstitutional claims. Other courts

have indicated agreement, yet without significant discussion

and certainly without explicit attention *o the constitutional

issues.’ Still other courts have hesitated to follow

suit—sensing, perhaps, the serious Article [II problems that

such a construction of the Act entails.*

The situation thus invites this Court’s attention, lest

inconsistent judgments build up in short order, many of them

erroneous, raising even more (equally difficult) problems to

resolve. A new statute like the AEDPA may require time for

the bugs to be sorted out. In this instance, however, the lower

courts will flounder over fundamental constitutional issues at

the very threshold of many cases—unless and until they receive

this Court’s guidance.

y E.g, Lozada v. United States, 107 F.3d 1011 (Qd Cir.

1997\ ing the Eighth Circuit’s ates itutional clei

are excluded—but without elaboration in a case in which the parties did not

dispute the question). Cf. United States v. Orozco, 103 F.3d 389 (Sth Cir.

1996)(intumating agreement).

senna bene "ae tied eae « Comms, $05 ¥. On

1034, 1038 (W.D. Tenn. a oo: i

“constitutional” appears in the new provision but nonetheless treating the

language of the new and the old law to be “exactly” the same).

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CONCLUSION

For the reasons given above, the Court should grant the

petitioner’s petition for review and should reverse the circuit

court’s judgment.

Respectfully submitted,