Reply Brief — Class v. United States, 137 S. Ct. 1065 (2017) (No. 16-424)

DISTRIBUTED

= Mga

AUG 16 2017

No. 16-424

eo CLERK

IN THE

Supreme Court of the United Stutes

RODNEY cen

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

REPLY BRIEF OF PETITIONER

JESSICA RING AMUNSON

Counsel of Record

JOSHUA M. PARKER

CORINNE M. SMITH

LEONARD R. POWELL*

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

jamunson@jenner.com

* Admitted in California only;

supervised by principals of the firm

i

TABLE OF CONTENTS

CTD fitrerniitctnisecteseenmceinmeniinins iil

FE iineesicinninscnsicnisipensmnpteniatinmniintatittiniionesemnenniniins 3

I. A Guilty Plea Does Not Inherently Waive

The Right To Challenge The

Constitutionality Of The Statute Of

apa ENE A Al Se Se nee me 3

A. This Court Should Not Abandon Its

Principled Approach For

Determining Which Claims Are

Preserved Post-Plea In Favor Of

The Government’s Unprincipled

B. The Government’s Attempts To

Undermine Petitioner’s

Interpretation Of Blackledge and

Menna Are Unavailing....................-0-+0+- 10

C. Petitioner’s Retroactivity Analogy

ESAT Sa RS I SOs AST SES e 13

Il. Petitioner Was Not Required To Enter A

Conditional Plea Under Rule 11(a)(2) To

Preserve His Constitutional Challenges........... 16

ii

A. The Advisory Committee Note

Supports Petitioner’s Position That

A Constitutional Challenge To The

Statute Of Conviction Is Not Subject

ee eR ctiiestctnitiecertiniinmeniens 17

B. Petitioner’s Proposed Default Rule

Fully Addresses The Government’s

Finality, Efficiency, And Clarity

i iinachen cnieidaisteninsaccieaninitinddeutmasneenesunce 19

C. Practical Considerations Weigh In

Favor Of Adopting Petitioner’s

Proposed Default Rule. ..................0..000 21

Ill. In The Alternative, The District Court’s

Misrepresentation Of The Default Effect

Of Petitioner’s Plea Requires Remand To

Determine Whether Petitioner’s Plea

Was Voluntary, Knowing, And

CER: Se 23

ED ctintieresinessnmienimssananiiemesineeiiiidaguintebatanenticeit 25

TABLE OF AUTHORITIES

CASES

Alexander v. Cockrell, 294 F.3d 626 (5th Cir.

Issac ciel ia cael ahatendinigasiaineniaitien 8

Blackledge v. Perry, 417 U.S. 21 (1974)......... 1, 5,6, 8

Bousley v. United States, 523 U.S. 614 (1998). 8-9, 23

Boykin v. Alabama, 395 U.S. 238 (1969)................. 11

Brady v. United States, 397 U.S. 742 (1970)... 7, 8, 23

Briley v. Wilson, 376 F.2d 802 (9th Cir. 1967)... 11-12

Crawford v. United States, 501 F. App’x 943

an I iisicinertinitinanithcrigesinctecicitadintonteaeieteiestens 14

Crist v. Bretz, 437 U.S. 28 (1978)..........cscsscsseseserreesere 5

Duhart v. United States, No. 0:16-cv-61499-

KAM, 2016 WL 4720424 (S.D. Fla. Sept. 9,

2016), appeal docketed, No. 17-11476 (11th

FS EE En 15

Ellis v. Dyson, 421 U.S. 426 (1975) ......cscccsesereeseeees 12

Haring v. Prosise, 462 U.S. 306 (1983)............... 12,13

Haynes v. United States, 390 U.S. 85 (1968) .......... 11

Hughes v. United States, 371 F.2d 694 (3d Cir.

isa hsinctesicatdenbicticensiniipatiesiesaniindanentaleiabaaainainmmibiaiaiatmnie 11

Johnson v. United States, 135 S. Ct. 2251

STi cideinriinicininedaniaiiaeiniaiebniiadtietnneceniicabiinaniiintea 15

Kontrick v. Ryan, 540 U.S. 443 (2004).............. eee 19

Lafler v. Cooper, 566 U.S. 156 (2012)................eeeeee 21

Libretti v. United States, 516 U.S. 29 (1995)........... 10

iv

Marchibroda v. United States, 368 U.S. 487

TIA ssenuhesiocsesiincietientsihdceieaninieahbeaenipiaiacinieistbbehtinatieitiatiipassiadies 12

Martinez v. Illinois, 134 S. Ct. 2070 (2014)............... 5

Menna v. New York, 423 U.S. 61 (1975)...... 1,5, 7, 12

Midland Asphalt Corp. v. United States, 489

ee cist ninitsniiedeetnneniiitibiinenitnniininnbdaiithioitebavtio 9

Missouri v. Frye, 566 U.S. 133 (2012)...............eeee 21

Montgomery v. Louisiana, 136 S. Ct. 718

scat iditesiabiadeiatiipa loaded cesta 8, 21

North Carolina v. Alford, 400 U.S. 25 (1970)......... 11

Phillips v. United States, 734 F.3d 573 (6th

EIN UUUnE Tae cdlicssicheisiesthcntsinsieniaperiieibaiceniannistailitetiageaetiainnanae 14

Pinkerton v. United States, 328 U.S. 640

SITTITT isisemseieisuanictnttissaeicabiilaiinatiiiiaiellienierhiaaidliahiiaihe 10

Puckett v. United States, 556 U.S. 129 (2009) .......... 3

Sanford v. United States, 841 F.3d 578 (2d Cir.

Siri esscintchieiibeeniaisharsdeieseiiiniaiieetibinalat neta ihideinedaaenieia 14

TC Heartland LLC v. Kraft Foods Group

Brands LLC, 137 S. Ct. 1514 (2017)................... 24

Tollett v. Henderson, 411 U.S. 258 (1978)....... 6, 7, 24

United States ex rel. Glenn v. McMann, 349

ae ee Ce CD cecttccneevinininiinniveicieniitorenes 12

United States v. Broce, 488 U.S. 563

SE litnterhinsenstepisintechinaiticeapibenniieamabintapeis 6, 7, 10, 11, 20

United States v. Bundy, 392 F.3d 641 (4th Cir.

Vv

United States v. Cornielle, 171 F.3d 748 (2d

EERE: STARS oe ene a i)

United States v. Cortez, 973 F.2d 764 (9th Cir.

ERAS TS SRI UTA SS on Sr a oe 24

United States v. Cotton, 5385 U.S. 625 (2002).......... 19

United States v. Cox, 464 F.2d 937 (6th Cir.

a 18, 19

United States v. Falcon, 347 F.3d 1000 (7th

IIIT iiasicdicleiaiainieiiesindberticeicicdesindlaieihdiialiahinetenpetes 9

United States v. Frazier-LeF ear, 665 F. App’x

I Se iccicctins initecciacsictsinaatianniaiaendnesnenanen 14

United States v. Goodwin, 457 U.S. 368 (1982) ........ 9

United States v. Hollywood Motor Car Co.,

Feae., GBB USS. BEB (IBGE). .ncccccocecseccesecssesogscccesecccceses 5

United States v. Jackson, 390 U.S. 570 (1968).......... 8

United States v. McIntosh, 676 F. App’x 792

acer aainchinleisdieteniabinideemdainmentnedees 14

United States v. Overmyer, 899 F.2d 457 (6th

TSaIT isiinsiantatiitibisisietiintaineninineietiintinetitaniimaitienementiin 9

United States v. Sepe, 474 F.2d 784 (5th Cir.

STi tastaiieachtadeibteniiiseetaintehitaatincicinateinneigieiaaiahnitenatiabiaanpinnnens 18

United States v. Stevens, 559 U.S. 460 (2010)......... 15

United States v. Vonn, 535 U.S. 55 (2002) .............. 24

United States v. Vukasinovic, 220 F. App’x

SR TI ois onisrsinniatnenicemasateeneinsiniptensionnndein 22

United States v. Williams, 341 U.S. 58 (1951)........ 17

vi

Village of Maineville v. Hamilton Township

Board of Trustees, 726 F.3d 762 (6th Cir.

sk isisdd sansidipabinstesielilaasathiehaddiaiipinimcipaiiitiainiphsencidee Sy

Water Splash, Inc. v. Menon, 137 S. Ct. 1504

TIIITIIT isicsitencnsieduniintintnicaniabiatanentbaibethigndnmnanibitatedmnesnes 24

Welch v. United States, 1386 S. Ct. 1257 (2016)....... 20

STATUTES

I i caceeataliaiidlanietieaenetliih 22

| REE eee a 22

OTHER AUTHORITIES

Albert W. Alschuler, A Nearly Perfect System

for Convicting the Innocent, 79 Albany L.

Fe, Se ID cierscntnscsccsntcnsessncennnssencenoenocesces 15

Brief of United States, United States v. Lee,

855 F.3d 244 (4th Cir. 2017) (No. 15-6099),

SIG WF hs DOR EIOD crceccscnrcerccessssessesnenseneesnasstosncvecseses 14

Comment, Conditioned Guilty Pleas: Post-

Guilty Plea Appeal of Nonjurisdictional

Issues, 26 UCLA L. Rev. 360 (1978)................... 18

i. =e he 8 |: Eee 24

Fed. R. Crim. P. 11 advisory committee’s note

to 1983 amendments. .............cccsseseeeseees 4,17, 18,19

Brian R. Means, Federal Habeas Manual:

Waiver of right to collateral review § 1:63,

Westlaw (database updated May 2017).............. 14

Memorandum from Eric Holder, Jr., Att’y

Gen., U.S. Dep’t of Justice, to All Federal

Prosecutors (May 19, 2010) ...........ccs-sesccserseeeeees 23

vii

Memorandum from Jefferson Sessions, Att’y

Gen., U.S. Dep’t of Justice, for All Federal

Prosecutors Cay 10, BOTT) ......0-0.cc-cseseseesecescoeeee- 23

John Bernard Mullady, Appellate Review of

Constitutional Infirmities Notwith-

standing a Plea of Guilty, 9 Hous. L. Rev.

RE LE SE Aa One cre 18

2 Lester B. Orfield, Criminal Procedure

Under the Federal Rules § 11:13 (1966)............. 11

Reply Brief of United States, United States v.

Pettiford, 612 F.3d 270 (4th Cir. 2010) (No.

09-4119), 2009 WL 4883883..............cccccceececseees 14-15

1

INTRODUCTION

The government acknowledges that in Blackledge v.

Perry, 417 U.S. 21 (1974), and Menna v. New York, 423

U.S. 61 (1975), this Court identified certain “types of

claims . . . as exceptions to the general preclusive effect

of a guilty plea.” Resp. Br. 13. The government’s

attempt to distinguish the claims at issue in Blackledge

and Menna from a claim that the statute of conviction is

unconstitutional rests on an unprincipled, unpersuasive,

and unworkable distinction between challenges to the

filing of charges and challenges to the ultimate

conviction. Under the government’s theory, the

“Menna-Blackledge doctrine” recognized by the

drafters of Federal Rule of Criminal Procedure 11(a)(2),

this Court, and numerous lower courts, is no doctrine at

all, but is instead largely limited to the facts of

Blackledge and Menna. That position should be

rejected. As Petitioner explained in the opening brief, a

constitutional challenge to the statute of conviction

attacks the State’s very power to obtain or sustain a

conviction. It is thus indistinguishable from the claims

at issue in Blackledge and Menna.

The government’s insistence that a conditional plea

under Rule 11(a)(2) is the “exclusive” method to

preserve constitutional claims for appeal is incompatible

with its simultaneous’ recognition of the

Blackledge/Menna “exception” to that Rule. Resp. Br.

11, 13. The Advisory Committee Note to Rule 11(a)(2)

explicitly states that any case falling within the “Menna-

Blackledge doctrine” is exempt from the Rule’s

conditional plea procedures, and the “doctrine” at that

time included constitutional challenges to the statute of

2

conviction, as evidenced by the authorities cited in the

Note. Those authorities described constitutional

challenges to the statute of conviction as “jurisdictional”

in nature, which renders irrelevant the government’s

reliance on the Note’s reference to guilty pleas as

waiving all “nonjurisdictional defects.”

Though the government argues that “interests in

efficiency, finality, and clarity” would be undermined by

Petitioner’s reading of Rule 11(a\(2), Resp. Br. 30,

Petitioner’s proposed default rule answers all of those

concerns. Under that rule, rather than require a

defendant to obtain the government’s and the court’s

consent to enter a conditional plea explicitly preserving

the right to appeal a constitutional challenge to the

statute of conviction, this Court instead should require

the government to obtain the defendant’s consent via an

explicit waiver of his challenge in a plea agreement.

Such a rule takes account of the practical considerations

that inform plea bargaining. Applying that rule to this

case, Petitioner prevails, as the government concedes it

did not obtain any written waiver from Petitioner.

In the alternative, this Court should remand for the

D.C. Circuit to consider whether Petitioner’s plea was

voluntary, knowing, and intelligent given the district

court’s representations in the plea colloquy regarding

Petitioner’s appellate rights.

3

ARGUMENT

I. A Guilty Plea Does Not Inherently Waive The

Right To Challenge The Constitutionality Of

The Statute Of Conviction.

The government does not dispute that plea bargains

“are essentially contracts,” and that plea agreements

should be interpreted in accordance with contract

principles. Pet’r’s Br. 18 (quoting Puckett v. United

States, 556 U.S. 129, 137 (2009)). The government also

concedes that, in his written plea agreement, Petitioner

waived neither the right to appeal his conviction nor the

right to challenge the constitutionality of his statute of

conviction. Resp. Br. 48-49. Ordinarily, that would be

the end of the matter because, under basic principles of

contract law, parties cannot be held to a term to which

they did not agree. The government, however, argues

that even in the absence of any explicit waiver,

Petitioner nonetheless relinquished his right to file an

appeal challenging the constitutionality of his statute of

conviction simply because he pled guilty. That argument

is supported by neither law nor logic.

A. This Court Should Not Abandon Its Principled

Approach For Determining Which Claims Are

Preserved Post-Plea In Favor Of The

Government’s Unprincipled Approach.

As the government concedes, in Blackledge and

Menna this Court recognized a category of

constitutional claims that can be raised on appeal! even

after a plea of guilty. Resp. Br. 39-40. This Court

established a principled standard for determining which

“kinds of constitutional objections” fall within this

4

“Menna-Blackledge doctrine.” Fed. R. Crim. P. 11

advisory committee’s note to 1983 amendments.

Pursuant to that standard, a defendant preserves claims

that go to the State’s very power to prosecute the

defendant for the crime alleged. Conversely, a

defendant is foreclosed from pursuing procedural and

evidentiary claims that are rendered irrelevant by the

admissions the defendant makes when pleading guilty.

Pet’r’s Br. 20-25.

The government rejects this Court’s straightforward

standard, instead inventing a new test under which a

defendant preserves claims only when “the relevant

constitutional violation [is] the filing of the charges,” and

forfeits claims when the relevant violation is “the entry

of a conviction.” Resp. Br. 39, 41. The government

characterizes the former as “a right to avoid having to

plead at all.” Jd. 44. The government’s distinction is

inconsistent with the nature of the claims at issue in

Blackledge and Menna, unmoored from this Court’s

precedent, and unworkable.

1. The government’s charges/conviction distinction

cannot be squared with Blackledge and Menna

themselves. The government does not dispute that in

both Blackledge and Menna, the defendants had no

“right to avoid having to plead at all.” Resp. Br. 44.

Instead, they were required to enter pleas, and then

litigate their constitutional claims all the way to this

Court. Pet’r’s Br. 41. Exactly like Petitioner here, the

defendant in Menna moved to dismiss his indictment

and failed; elected to plead guilty rather than go to trial;

and then appealed his conviction, claiming that the State

could not constitutionally prosecute him for the offense

5

of which he had been convicted. 423 U.S. at 61-62. There

is no meaningful distinction between these cases.

In drawing its charges/conviction distinction, the

government relies primarily on Blackledge’s statement

that the right at stake is the “right not to be haled into

court at all.” 474 U.S. at 30. But this Court has cautioned

that a defendant advancing a prosecutorial

vindictiveness challenge does not literally have a “right

not to be haled into court at all”— he has no “right not to

be tried”—and so, as the government admits, must await

his conviction before pursuing an appeal. United States

v. Hollywood Motor Car Co., 458 U.S. 263, 268-69 (1982);

Resp. Br. 41.

Nor does the government’s distinction cohere with

the nature of double jeopardy violations. “[Tjhe

lynchpin for all double jeopardy jurisprudence” is that

jeopardy does not attach until the jury is actually

empaneled and sworn (or, in non-jury cases, until the

first witness is sworn), meaning that the “very act of

haling” the defendant into court does not “complete[] the

constitutional violation,” as the government argues

(Resp. Br. 41 (quotation marks omitted)). See Crist v.

Bretz, 4837 U.S. 28, 37-388 & n.15 (1978); Martinez v.

Illinois, 134 8. Ct. 2070, 20.2 (2014).

The government’s charges/conviction distinction

thus cannot explain Blackledge and Menna themselves,

where the relevant constitutional violations were not

limited to the “filing of the charges” and did not provide

defendants with a “right to avoid having to plead at all.”

Resp. Br. 39, 44.

6

2. The government’s charges/conviction distinction

likewise cannot explain this Court’s other relevant

precedents. Under the government’s view that the

Blackledge/Menia doctrine is limited to cases where the

“relevant constitutional violation [is] the filing of the

charges that forced the defendant to enter a plea,” Resp.

Br. 39, several of this Court’s cases should have come out

differently. For example, in Tollett v. Henderson, 411

U.S. 258 (1973), this Court held that the defendant’s

guilty plea precluded him from challenging his

indictment on the ground that the grand jury was

unconstitutionally selected on the basis of race. J/d. at

266. Under the government’s test, such a challenge

should have been deemed preserved post-plea because

“(t]he claim[] at issue” challenged the grand jury’s “act

of filing the charges,” rather than the ultimate

conviction. Resp. Br. 41; Blackledge, 417 U.S. at 30

(characterizing the defect in Tollett as a “tainted

indictment”).

Similarly, the government’s theory cannot explain

why the Court reached opposite outcomes in Menna and

United States v. Broce, 488 U.S. 563 (1989). Both

featured post-plea double jeopardy challenges to

indictments, but only Menna held the challenge was

preserved post-plea. Addressing Menna, the

government asserts that a double jeopardy claim is

preserved post-plea because it “is so intrinsically

directed at the very authority of the Government to hale

[the defendant] into court.” Resp. Br. 41 (alteration in

original) (internal quotation marks omitted). But if this

explanation held water, Broce’s double jeopardy claim —

7

which could be described just this way — would not have

been foreclosed. 488 U.S. at 576.

In contrast to the government’s tortured reading of

Blackledge and Menna, Petitioner’s interpretation

easily explains these outcomes. In Tollett, the

unconstitutional method of selecting grand jurors was a

procedural violation and therefore curable with “a new

indictment by a properly selected grand jury.” Pet’r’s

Br. 22-23 (quoting Blackledge, 417 U.S. at 30). The

defendant accordingly could not challenge the violation

post-plea because it did not “go to the very power of the

State to bring the prosecution,” and so a successful claim

would not have the practical result of “preventling] a

trial from taking place at all.” Jd. at 23 (brackets in

original) (internal quotation marks omitted).

And, unlike the defendant in Menna, the defendants

in Broce could prove their double jeopardy claims only

by contradicting their admissions in the indictments to

which they pled guilty. Jd. at 24-25. The claims

accordingly were barred by the principle of Tollett and

the Brady trilogy that “prohibits further inquiry into

constitutional violations that become irrelevant”

because they are inconsistent with a defendant’s

admissions of guilt. Jd. at 25.’

‘ The government points to Brady v. United States, 397 U.S. 742

(1970), as the case that proves its rule because the Court foreclosed

a post-plea challenge even though the relevant defect could only be

cured through “judicial invalidation” of an unlawful statutory

provision. Resp. Br. 46-47. The government misunderstands the

relevant standard. A violation is curable if a defendant could have

been convicted of the same substantive crime (or given the same

punishment for that crime) had different procedures or evidentiary

8

3. The government’s charges/conviction distinction

is also unworkable in practice because a constitutional

challenge to the statute of conviction can be—and often

is—conceived of as a challenge to the initiation of

proceedings. Courts regularly characterize

constitutional challenges to the statute of conviction as

challenges to the “outset” of the proceedings rather than

merely attacks on the conviction itself. See, e.g.,

Montgomery v. Louisiana, 136 S. Ct. 718, 730-31 (2016)

(when “laws are unconstitutional and void, the Circuit

Court acquired no jurisdiction over the causes” (quoting

Ex Parte Siebold, 100 U.S. 371, 376-77 (1880))); Vill. of

Maineville v. Hamilton Twp. Bd. of Trs., 726 F.3d 762,

766 (6th Cir. 2013) (Sutton, J.) (noting that an

“unconstitutional application of a statute” and a “statute

that is unconstitutional in all of its applications” are both

“void from the outset”); Alexander v. Cockrell, 294 F.3d

626, 630 (5th Cir. 2002) (“An unconstitutional statute is

void ab initio, having no effect, as though it had never

been passed.”). This makes sense given that “only

Congress, and not the courts, .. . can make conduct

criminal.” Bousley v. United States, 523 U.S. 614, 620-21

rules been employed. See Blackledge, 417 U.S. at 30; Pet’r’s Br. 23-

24 n.3. In Brady, the defect inhered in the procedural aspect of the

statutory scheme—that only by forgoing a guilty plea and

proceeding with trial could a defendant face the death penalty.

Brady, 397 U.S. at 745-46. This defect could have been cured by

altering that procedural aspect, such as by allowing for capital

punishment for those who pled guilty as wel] as those who opted for

trial. See United States v. Jackson, 390 U.S. 570, 575-81 (1968).

Brady is thus wholly consistent with the “curable” approach

explained in Blackledge.

9

(1998). Even applying the government’s standard, then,

a constitutional challenge to a criminal statute is, at least

in part, an attack on the initiation of proceedings.

4. The government also relies on the “presumption

that a statute is constitutional” to argue that a defendant

challenging the constitutionality of a statute on appeal is

not challenging the “initiation of the prosecution.” Resp.

Br. 41. But that principle cannot distinguish

constitutional challenges from double jeopardy and

prosecutorial vindictiveness claims. There is also, after

all, “a well-accepted principle that grand jury

indictments are presumed valid.” United States v.

Overmyer, 899 F.2d 457, 465 (6th Cir. 1990); United

States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999); see

also Midland Asphalt Corp. v. United States, 489 U.S.

794, 802 (1989) (“Only a defect so fundamental! that it

causes ... the indictment no longer to be an indictment,

gives rise to the constitutional right not to be tried.”).

And, when a defendant alleges vindictive prosecution

before trial, an additional presumption attaches “to the

initiation of the prosecution”: “[A] prosecutc,’'s pretrial

decisions, including the choice to seek increased or

additional charges, are presumed valid.” United States

v. Falcon, 347 F.3d 1000, 1004-05 (7th Cir. 2005) (quoting

United States v. Goodwin, 457 U.S. 368, 382 (1982)).

Thus, the government cannot distinguish Blackledge

and Menna on the ground that no presumptive validity

accompanies prosecutions susceptible to double

jeopardy or prosecutorial vindictiveness claims.

10

B. The Government’s Attempts To Undermine

Petitioner’s Interpretation Of Blackledge and

Menna Are Unavailing.

In addition to introducing a baseless new distinction,

the government makes various other arguments in an

attempt to undercut the straightforward logic of

Petitioner’s position that a constitutional challenge to

the statute of conviction falls within’ the

Blackledge/Menna doctrine. None have merit.

1. The government erroneously states, without

citation, that by admitting guilt, a defendant

“necessarily concedes that the conviction is not barred

by then-applicable law.” Resp. Br. 36; see also id. at 33-

34. The government reaches this conclusion by

misreading Libretti v. United States, 516 U.S. 29 (1995),

and Broce. Both cases provide that, by pleading guilty,

a defendant “admit[{s] guilt of a substantive crime.”

Broce, 488 U.S. at 570; Libretti, 516 U.S. at 38 (citing

Broce). But admitting guilt of a “substantive crime,” as

this Court normally uses that term, simply means

admitting guilt of a crime that has been defined by the

legislature. See, e.g., Pinkerton v. United States, 328

U.S. 640, 643-44 (1946) (defining what constitutes a

“substantive” crime). It does not mean that the

defendant agrees that the legislature can

constitutionally criminalize that conduct. Reading

either case for that proposition would be odd given that

11

neither case involved a constitutional challenge to the

statute of conviction.’

To be sure, Broce notes that a guilty plea generally

results in a “binding, final judgment of guilt.” 488 U.S.

at 569. But the defendants in Blackledge and Menna

likewise had binding, final judgments of guilt until those

judgments were overturned as unconstitutional. Broce

simply reaffirms the validity of Blackledge and Menna

as “[ajn exception to the rule barring collateral attack on

a guilty plea,” id. at 574, and the question before this

Court is whether a challenge to the constitutionality of

the statute of conviction falls within that exception. As

discussed supra and in the opening brief, the analysis of

the underlying claim in Broce provides further support

for answering that question in the affirmative. Pet’r’s

Br. 24-25.

2. That question is also answered in the affirmative

by Haynes v. United States, 390 U.S. 85 (1968), in which

this Court found it obvious that “of course” a defendant’s

plea of guilty did not waive his right to bring a post-plea

constitutional challenge to his statute of conviction. 390

U.S. at 87 n.2. The government attempts to explain

Haynes by suggesting that perhaps the preclusive effect

of guilty pleas was not well established when Haynes

was decided, Resp. Br. 48, but that is not true, see, e.g., 2

Lester B. Orfield, Criminal Procedure Under the

Federal Rules § 11:13 (1966); Hughes v. United States,

371 F.2d 694, 696 (8d Cir. 1967); Briley v. Wilson, 376

* The same is true of North Carolina v. Alford, 400 U.S. 25 (1970),

and Boykin v. Alabama, 395 U.S. 238 (1969), also relied on by the

government. Resp. Br. 45.

12

F.2d 802, 802-03 (9th Cir. 1967) (per curiam); United

States ex rel. Glenn v. McMann, 349 F.2d 1018, 1019 (2d

Cir. 1965); Marchibroda v. United States, 368 U.S. 487,

493 (1962). Indeed, as Petitioner already noted, the

Fifth Circuit decision before the Court in Haynes

observed that a guilty plea is generally “a waiver of all

nonjurisdictional defects and defenses.” Pet’r’s Br. 27-

28; see infra Part II1.A (discussing use of the term

“nonjurisdictional”).

8. The government’s reliance on a footnote from a

two-Justice dissent in Ellis v. Dyson, 421 U.S. 426

(1975), Resp. Br. 48, does not change the analysis. Ellis

featured a defendant who pled nolo contendere to a

criminal charge but later sought to expunge the

conviction by way of a § 1983 action on the ground that

the statute of conviction was unconstitutional. 421 U.S.

at 429-30. The Ellis majority outlined thorny standing

and abstention questions for the district court to address

on remand and, despite the dissent, did not opine on

whether the petitioner could pursue his constitutional

challenge given his plea. Jd. at 434-35. Ellis is thus

consistent with Haynes, as the Court refrained from

treating the guilty plea as a hurdle to relief.

Moreover, both Menna and Haring v. Prosise, 462

U.S. 306 (1983), were issued after Hllis and reaffirmed

that defendants are not precluded from raising post-plea

a claim where “judged on its face the charge is one which

the State may not constitutionally prosecute” because,

in such a circumstance, “the State may not convict” the

defendant “no matter how validly his factual guilt is

established.” Menna, 423 U.S. at 62 n.2; Haring, 462

13

U.S. at 321 (endorsing and applying Menna standard).

Neither case adopted the view of the Ellis dissenters.

C. Petitioner’s Retroactivity Analogy Is Sound.

The government misapprehends Petitioner’s analogy

to this Court’s retroactivity jurisprudence. Petitioner is

not wielding retroactivity doctrine as a tool for defying

“normal litigation standards,” as the government

asserts. Resp. Br. 18-19. Petitioner is merely

recognizing that the retroactivity standard for

substantive rules “echoes” the _ standard for

Blackledge/Menna claims, and that by the same logic,

the Blackledge/Menna standard enables post-plea

challenges to the statute of conviction. Pet’r’s Br. 32.

The government’s insistence that the analogy is inapt

because retroactivity arises only ffollowing a

“definitively established” rule is unavailing. Resp. Br.

18. Just as neither a double jeopardy nor a vindictive

prosecution violation need be “definitively established”

for a defendant to pursue such a claim post-plea

pursuant to Blackledge/Menna, neither does a

constitutional challenge to the statute of conviction.

The government’s attempts to reassure the Court

that defendants will not be put in an impermissible

Catch-22, in which they can never challenge the

constitutionality of their statutes of conviction, on direct

or collateral review, are likewise unpersuasive. Pet’r’s

Br. 34-35; Resp. Br. 19-21. Despite the government’s

suggestion to the contrary, Resp. Br. 20, courts

regularly hold that defendants cannot get the benefit of

retroactive new rules on collateral review where, as in

Petitioner’s case, the plea agreement explicitly waives

the defendant’s right to seek collateral review, J.A. 41;

14

see, e.g., United States v. Frazier-LeFear, 665 F. App’x

727, 731 (10th Cir. 2016); Sanford v. United States, 841

F.3d 578, 580-81 (2d Cir. 2016); Crawford v. United

States, 501 F. App’x 948, 945 (11th Cir. 2012); Brian R.

Means, Federal Habeas Manual § 1:63, Westlaw

(database updated May 2017) (noting that federal

circuits do not view a “post-plea change in the law

favorable to the defendant” as significant to collateral

waiver in plea agreements). And even where a plea

agreement does not explicitly waive collateral review,

the government’s suggestion does nothing to address

the injustice of requiring a defendant convicted under an

unconstitutional statute to languish in the criminal

justice system while awaiting a successful challenge to

the statute mounted elsewhere.

The government claims that defendants might also

be able to benefit from a substantive new rule holding

that a statute of conviction is unconstitutional by

claiming “actual innocence” to overcome procedural

default. Resp. Br. 20. But it is unsettled whether “actual

innocence” applies when a statute, after a change in law,

no longer validly criminalizes the conduct that served as

the basis of a conviction, or no longer validly authorizes

the defendant’s sentence. See, e.g., United States v.

McIntosh, 676 F. App’x 792, 795 (10th Cir. 2017);

Phillips v. United States, 734 F.3d 573, 581-82 (6th Cir.

2013). And despite what the government says here, in

other cases it has argued that a defendant cannot claim

“actual innocence” in such circumstances. See, e.g., Br.

of United States at 34, United States v. Lee, 855 F.3d 244

(4th Cir. 2015) (No. 15-6099), 2015 WL 9412180; Reply

Br. of United States at 16-18, United States v. Pettiford,

15

612 F.3d 270 (4th Cir. 2010) (No. 09-4119), 2009 WL

4883833.

With respect to the procedural bar for habeas

petitioners who have not raised their constitutional

challenges to the statute of conviction on direct appeal,

the best the government can offer is leaving such

petitioners “at the mercy of noblesse oblige,” United

States v. Stevens, 559 U.S. 460, 480 (2010), assuring the

Court that the government “has the ability” to waive the

procedural bar if it believes “defendants have

meritorious substantive claims.” Resp. Br. 20. In other

words, the government asks the Court to trust

prosecutors to sort good claims from bad claims and act

in defendants’ best interests. But “[a]s a general rule,

one should not trust a prosecutor who says, “Trust me.”

Albert W. Alschuler, A Nearly Perfect System for

Convicting the Innocent, 79 Albany L. Rev. 919, 935

(2015/2016).* When there is a possibility that a

defendant has been convicted for something that is not a

crime, the stakes are too high.

* The government claims that it is currently waiving the procedural]

bar for defendants sentenced with the statutory enhancement held

unconstitutional in Johnson v. United States, 135 S. Ct. 2251 (2015).

Resp. Br. 20-21. But even as to this, the government has been

criticized for not “tak[ing] a consistent position.” Duhart v. United

States, No. 0:16-cv-61499-KAM, 2016 WL 4720424, at *3 n.6 (S.D.

Fla. Sept. 9, 2016), appeal docketed, No. 17-11476 (11th Cir. Apr. 3,

2017).

16

Il. Petitioner Was Not Required To Enter A

Conditional Plea Under Rule il(a)(2) To

Preserve His Constitutional Challenges.

Despite its acknowledgement of the

Blackledge/Menna “exception” to the preclusive effect

of guilty pleas, the government argues that Rule 11(a)(2)

provides the “exclusive procedure for preserving a

constitutional challenge to a federal criminal statue to

which a defendant pleads guilty.” Resp. Br. 11

(emphasis added). But as the relevant Advisory

Committee Note indicates, the Rule exempts the

“Menna-Blackledge doctrine” from its reach. And that

doctrine plainly includes more than just Blackledge and

Menna themselves. The government’s reliance on the

Advisory Note’s reference to guilty pleas waiving

“nonjurisdictional defects” is misplaced given that the

authorities otherwise cited in the Note specifically

referred to constitutional challenges to the statute of

conviction as “jurisdictional.”

While the government argues that Petitioner’s

position would undermine “interests in efficiency,

finality, and clarity,” Resp. Br. 30, the government

overlooks a rather obvious solution to its problem—

requiring the government to obtain consent and an

explicit waiver of rights from the defendant, rather than

requiring the defendant to obtain consent and an explicit

preservation of rights from the government and the

court.

17

A. The Advisory Committee Note Supports

Petitioner’s Position That A Constitutional

Challenge To The Statute Of Conviction Is Not

Subject To Rule 11(a)(2).

When conditional pleas were first authorized by Rule

11(a)(2) in 1983, the Advisory Committee explicitly

recognized this Court’s holding “that certain kinds of

constitutional objections may be raised after a plea of

guilty.” Fed. R. Crim. P. 11 advisory committee’s note

to 1983 amendments. Citing Blackledge and Menna, the

Advisory Committee stated that the conditional plea

procedures prescribed by the Rule were to have “no

application to such situations, and should not be

interpreted as either broadening or narrowing the

Menna-Blackledge doctrine or as_ establishing

procedures for its application.” Jd.

Skipping over any explanation of what the Advisory

Committee meant by its reference to the “Menna-

Blackledge doctrine,” the government instead stresses

language elsewhere in the Advisory Note stating that

“the availability of a conditional plea under specified

circumstances will aid in clarifying the fact that

traditional, unqualified pleas do constitute a waiver of

nonjurisdictional defects.” Jd. The government insists

that the Committee intended to use the “standard

definition of jurisdictional,” Resp. Br. 26, which could

not have included constitutional challenges to the

statute of conviction given that in United States v.

Williams, 341 U.S. 58 (1951), this Court had already

decided that such challenges were “nonjurisdictional,”

Resp. Br. 28.

18

The authorities relied on by the Committee indicate

otherwise. The only authority the Advisory Note

quoted at length treated Blackledge, Menna, and

challenges to the statute of conviction as “jurisdictional.”

See Comment, Conditioned Guilty Pleas: Post-Guilty

Plea Appeal of Nonjurisdictional Issues, 26 UCLA L.

Rev. 360, 360 n.1 (1978) (“Unqualified guilty pleas do not

preclude review of jurisdictional defects .... For

example, the defendant may challenge the conviction

where . . . the statute under which the prosecution is

brought is unconstitutional ....”). In fact, all of the

sources cited in the Advisory Note that discuss what

constitutes a “jurisdictional” challenge characterize a

challenge to the statute of conviction as raising a

“jurisdictional” defect, see id.; United States v. Cox, 464

F.2d 937, 940 (6th Cir. 1972); United States v. Sepe, 474

F.2d 784, 788 (5th Cir. 1978), or argue that

“Jurisdictional” is so broad that it should encompass

even post-plea Fourth Amendment claims, see John

Bernard Mullady, Appellate Review of Constitutional

Infirmities Notwithstanding a Plea of Guilty, 9 Hous. L.

Rev. 305, 313-15 (1971).

Indeed, in the Cox case cited by the Advisory

Committee, the court went so far as to state that the

‘Surisdictional exception to the general rule [about the

preclusive effect of a guilty plea] has been limited to

cases in which the accused is challenging the

constitutionality of the statute, usually on Fifth

Amendment grounds, under which he is charged.” 464

F.2d at 940 (emphasis added). In support of that

statement, the Sixth Circuit cited this Court’s decision

in Haynes. See id. Cox also quoted a leading treatise at

19

the time as stating: “A defendant who has pleaded guilty

is not barred from claiming .. . that the statute under

which he was charged is unconstitutional. ... The plea

of guilty does waive, however, al] nonjurisdictional

defects in the proceeding.” Jd. (emphasis omitted)

(quoting 1 Wright, Federal Practice and Procedure:

Criminal § 175b) (citing multiple cases for this

proposition).

The Committee did not cite or otherwise refer to this

Court’s decision in Williams, and from the authorities it

did cite, it appears that the Committee at the time was

using “[non]jurisdictional” in a “less than meticulous”

manner, Kontrick v. Ryan, 540 U.S. 448, 454 (2004);

Pet’r’s Br. 39, giving it a meaning far broader than “the

courts’ statutory or constitutional power to adjudicate

the case,” United States v. Cotton, 535 U.S. 625, 630

(2002) (emphasis omitted); Resp. Br. 16.*

B. Petitioner’s Proposed Default Rule Fully

Addresses The Government’s Finality,

Efficiency, And Clarity Concerns.

The government argues that if defendants are not

required to preserve constitutional challenges to the

statute of conviction under the conditional plea

procedures of Rule 11(a)(2), this would destroy the

finality of pleas, produce inefficiency, and create costly

ambiguity. Resp. Br. 30-31. None of these concerns

should give this Court any pause about adopting the

* Even if the Committee were using “nonjurisdictional” in the

manner the government claims, the Committee separately

exempted claims under the “Menna-Blackledge doctrine” from the

general bar on nonjurisdictional claims. Pet’r’s Br. 39 n.5.

20

default rule Petitioner advocates. First, where the

conviction or sentence is not authorized by law, “finality

interests are at their weakest,” Welch v. United States,

136 S. Ct. 1257, 1266 (2016), because there is “little

societal interest in permitting the criminal process to

rest at a point where it ought properly never to repose,”

id. (quoting Mackey v. United States, 401 U.S. 667, 693

(1971) (opinion of Harlan, J.)); see also Pet’r’s Br. 32-33.

Second, the government’s concerns about

inefficiencies are premised on its assumption that

constitutional challenges to a statute of conviction will

demand additional factual development or will not prove

dispositive. Resp. Br. 31-32. But that is not the rule

Petitioner advocates and is not consistent with this

Court’s precedent: Challenges with the former attribute

do not fall within the Blackledge/Menna exception under

Broce, Pet’r’s Br. 43 (citing Broce, 488 U.S. at 569), and

challenges with the latter attribute would not go to the

very power of the government to prosecute the case.

Third, as to the concern that the government will not

“know(] exactly what it gets for its concessions in the

plea agreement,” Resp. Br. 30, there is an easy solution.

The government should be required to obtain an explicit

waiver of a defendant’s rights in the plea agreement

rather than requiring the defendant to explicitly

preserve them. In fact, the government has noted that

many federal plea agreements already contain explicit

waivers that “independently bar a challenge to the

statute of conviction on appeal.” BIO 17.

21

C. Practical Considerations Weigh In Favor Of

Adopting Petitioner’s Proposed Default Rule.

In the realm of criminal procedure, this Court has

acknowledged that practical considerations inform its

determinations. See Lafler v. Cooper, 566 U.S. 156, 169-

70 (2012) (rejecting an argument that “ignores the

reality that criminal justice today is for the most part a

system of pleas, not a system of trials”); Missouri v.

Frye, 566 U.S. 133, 143-44 (2012) (“Because ours ‘is for

the most part a system of pleas, not a system of trials,’ it

is insufficient simply to point to the guarantee of a fair

trial as a backstop... .” (quoting Lafler, 566 U.S. at 170)).

Since the Court is asked here to determine a default rule

around which defendants and the government will

bargain in the future, the Court’s choice is in part one

about which side should bear that default rule’s burden.

Practical considerations favor placing the burden on the

government.

The cost to a defendant who mistakenly forfeits his

right to challenge the constitutionality of the statute of

conviction is great. As this Court established over 135

years ago and reaffirmed just last year, “[{ajn

unconstitutional law is void, and is as no law.”

Montgomery, 136 S. Ct. at 731 (alteration in original).

Thus, a default rule that burdens defendants may punish

some people who have committed no crimes. These high

stakes alone are a “practical justification for singling out

th[e]se cases as ones in which” placing the burden of “the

consent requirement” on the defendant “would be

problematic.” Resp. Br. 32.

As amici point out, the pressures criminal

defendants face to plead are immense, while the

22

resources they and their attorneys have access to are

often sparse. See NACDL Amicus Br. 6-10; Innocence

Project Amicus Br. 6-15. It is not sufficient to point to

the hypothetical possibility of habeas relief as a backstop

in the event a defendant forfeits his constitutional

challenge because of his ignorance of the default rule.

Even a later decision holding that the defendant’s

statute of conviction is, in fact, unconstitutional, is no

guaranteed panacea, given the many procedural

obstacles to seeking habeas relief. See 28 U.S.C.

§ 2255(f), (h) (one-year limitations period and

restrictions on subsequent or successive petitions);

supra (discussing collateral review waivers and the

habeas procedural bar).

It does not matter that the government has refrained

from “habitually withhold[ing] consent for conditional

pleas,” Resp. Br. 32 (emphasis added), and that it can

come up with 56 examples of cases in which consent was

granted. The government certainly does not grant

consent in all cases, see, eg., United States v.

Vukasinovic, 220 F. App’x 612, 614 (9th Cir. 2007), nor

does it have any obligation to do so. Given the

government’s view that Petitioner's Second

Amendment claim is “insubstantial” and that his

vagueness claim was “forfeited,” BIO 15-16, it is unclear

whether the government even would have consented to

a conditional plea in this case.°

-_—

* The merits of Petitioner’s constitutional claims are not before this

Court, but contrary to the government’s view, they are neither

insubstantial nor forfeited. See D.C. Cir. Reply Br. 15-29.

23

Moreover, even if current government policy is not

to “habitually” withhold consent, government policy can

change. Compare, e.g., Memorandum from Eric Holder,

Jr., Att’y Gen., U.S. Dep’t of Justice, to All Federal

Prosecutors (May 19, 2010) (directing federal

prosecutors to make charging decisions “in the context

of ‘an individualized assessment [of the case]””’), with

Memorandum from Jefferson Sessions, Att’y Gen., U.S.

Dep’t of Justice, for All) Federal Prosecutors (May 10,

2017) (directing federal prosecutors to “charge and

pursue the most serious, readily provable offenses” in

every case). And in any event, tremendous discretion is

left to individual prosecutors. The government’s

exhortation to trust its noblesse oblige is not enough.

Ill. In The Alternative, The District Court’s

Misrepresentation Of The Default Effect Of

Petitioner’s Plea Requires Remand To

Determine Whether Petitioner's Plea Was

Voluntary, Knowing, And Intelligent.

The government misapprehends the nature of

Petitioner’s alternative argument that this Court should

remand for a determination concerning whether the plea

was voluntary, knowing, and intelligent. Pet’r’s Br. 44-

46. Petitioner’s claim derives not from a subjective

misunderstanding on his part, but from the district

court’s misrepresentation regarding the default effect of

a guilty plea.

This Court has repeatedly recognized that a court’s

misrepresentation can prevent a guilty plea from being

voluntary, knowing, and intelligent. Brady v. United

States, 397 U.S. 742, 755 (1970); Bowsley, 523 U.S. at 618-

19. Following this Court’s lead, many circuits have ruled

24

that when a court misrepresents the effect of a guilty

plea, the defendant must be afforded the opportunity to

withdraw the plea. See, e.g., United States v. Cortez, 973

F.2d 764, 767-69 (9th Cir. 1992); United States v. Bundy,

392 F.3d 641, 649 (4th Cir. 2004).° If the Court holds that

Petitioner cannot appeal to _ challenge’ the

constitutionality of the statute under which he was

convicted, then the district court misrepresented the

default effect of Petitioner’s guilty plea when it told

Petitioner that he could “appeal a conviction after a

guilty plea if [he] believe[d] that [his] guilty plea was

somehow unlawful.” J.A. 63.

Contrary to the government’s suggestion, Resp. Br.

50-51, this Court often remands for lower courts to

address questions that arise from the Court’s resolution

of the question presented. See, e.g., Water Splash, Inc.

v. Menon, 137 S. Ct. 1504, 1513 (2017); TC Heartland

LLC v. Kraft Foods Group Brands LLC, 137 8. Ct. 1514,

1517 n.1 (2017). In fact, it has done so in this precise

context. See Tollett, 411 U.S. at 268-69 (remanding

because “we are not in a position to say whether

[respondent] is presently precluded from raising the

issue of the voluntary and intelligent nature of his guilty

plea,” id. at 268). Should the Court rule against

* The government’s reliance on United States v. Vonn, 586 U.S. 55

(2002), is misplaced. Resp. Br. 50. Vann concerned the standard of

review for a Rule 11 error. 535 U.S. at 62-63. But Petitioner does

not allege the court erred when describing “the terms of al) plea-

agreement provision waiving the right to appeal,” Fed. R. Crim. P.

11(bX1)(N); rather, he alleges the court erred while going beyond

its Rule 11 obligations and misinforming Petitioner about his

appellate rights, which were not part of the plea agreement.

25

Petitioner, it should remand for a determination of

whether his plea was voluntary, knowing, and

intelligent.

CONCLUSION

The judgment of the District of Columbia Circuit

should be reversed.

Respectfully submitted,

JESSICA RING AMUNSON

Counsel of Record

JOSHUA M. PARKER

CORINNE M. SMITH

LEONARD R. POWELL*

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

jamunson@jenner.com

*Admitted in California only;

supervised by principals of the firm