# Amicus Curiae Brief — Hohn v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0098%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 236

## Text

Supreme Court, U.S.

FILED
AUG 12 1997

a,

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 )
\3 (¥

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

il

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

10

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
ee
cases.

11

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).

12

:
;

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).

13

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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,

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

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0098%3A05. Public record. Not legal advice.