michael snipes v. united states (solicitor general’s brief)
DESCRIPTION
Supreme Court reverses with instructions for Sixth Circuit to take into account this brief.TRANSCRIPT
________________________________________________________________ ________________________________________________________________
No. 13-6733
________________________________________________________________ ________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
MICHAEL SNIPES, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES
_______________ DONALD B. VERRILLI, JR. Solicitor General Counsel of Record MYTHILI RAMAN Acting Assistant Attorney General MICHAEL A. ROTKER Attorney Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217
(I)
QUESTION PRESENTED
Whether the court of appeals erred in denying petitioner’s
application for a certificate of appealability to appeal the
district court’s denial of his motion to vacate his mandatory
life sentence under 28 U.S.C. 2255(a), when intervening
precedent establishes that petitioner’s mandatory life sentence
was imposed in error.
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 13-6733
MICHAEL SNIPES, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES
_______________
OPINIONS BELOW
The order of the court of appeals denying petitioner’s
application for a certificate of appealability (Pet. App. 22-24)
is unpublished and unreported. A prior unpublished opinion of
the court of appeals in petitioner’s case is reprinted in 236
Fed. Appx. 996.
JURISDICTION
The judgment of the court of appeals was entered on July 2,
2013. The petition for a writ of certiorari was filed on
September 30, 2013. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
2
STATEMENT
In 2003, following a guilty plea in the United States
District Court for the Eastern District of Tennessee, petitioner
was convicted of conspiracy to possess 50 grams or more of
cocaine base and 500 grams or more of cocaine with intent to
distribute them, in violation of 21 U.S.C. 846 and 841(a)(1).
He was sentenced to a mandatory term of life imprisonment. See
21 U.S.C. 841(b)(1)(A). The court of appeals affirmed. 236
Fed. Appx. 996 (6th Cir.), cert. denied, 552 U.S. 982 (2007).
In 2007, petitioner filed a motion to vacate his sentence
under 28 U.S.C. 2255(a). The district court sua sponte
dismissed four of the six claims for relief on procedural
grounds. Pet. App. 4. Petitioner appealed, and the court of
appeals dismissed the appeal. Petitioner then filed a motion to
supplement his Section 2255 motion to assert that intervening
precedent established that his mandatory life sentence had been
erroneously imposed. Id. at 14. The district court denied
petitioner’s Section 2255 motion and his motion to supplement,
and it also denied petitioner’s application for a certificate of
appealability (COA). Id. at 21. Petitioner sought a COA from
the court of appeals on the question whether his mandatory life
sentence was imposed in error. The court of appeals declined to
issue a COA. Id. at 22-24.
3
1. a. From 2001 to 2003, petitioner supplied large
quantities of crack and powder cocaine to various confederates
as part of a drug distribution operation in and around Johnson
City, Tennessee. Presentence Investigation Report (PSR) ¶ 6.
In September 2003, a federal grand jury indicted petitioner for
conspiracy to distribute and possess with intent to distribute
50 grams or more of cocaine base and 500 grams or more of
cocaine, in violation of 21 U.S.C. 846 and 841(a)(1).
Under the law then in effect,1 a first-time offender
convicted of an offense involving the charged drug quantities
faced a mandatory minimum sentence of ten years of imprisonment
and a maximum sentence of life. See 21 U.S.C. 841(b)(1)(A)(iii)
(2000). If the offender’s criminal history included “a prior
conviction for a felony drug offense,” then the offender was
subject to a mandatory minimum sentence of 20 years of
imprisonment and a maximum sentence of life. Ibid. And an
offender with “two or more prior convictions for a felony drug
offense [that] have become final” faced “a mandatory term of
life imprisonment without release.” Ibid. A “felony drug
1 In 2010, the Fair Sentencing Act of 2010 (FSA), Pub. L.
No. 111-220, 124 Stat. 2372, raised the threshold quantity of cocaine base triggering a ten-year minimum sentence from 50 to 280 grams. Petitioner, however, was sentenced years before the FSA’s effective date, and the amended drug quantities apply only to post-FSA sentencings. See Dorsey v. United States, 132 S. Ct. 2321 (2012). Petitioner does not rely on the FSA here.
4
offense” is defined as a federal, state, or foreign drug offense
“that is punishable by imprisonment for more than one year.” 21
U.S.C. 802(44). A court may not impose a recidivism-based
statutory enhancement unless the government files an information
that notifies the defendant of the prior convictions triggering
the enhancement. 21 U.S.C. 851(a)(1).
On December 22, 2003, the government filed a notice under
Section 851 indicating its intent to seek an enhanced sentence
in the event of a conviction. The notice alleged that
petitioner had two prior convictions for a “felony drug
offense”: (1) a September 2, 1997, North Carolina state court
conviction for possession with intent to sell and deliver
cocaine, and (2) a March 29, 1999, North Carolina state court
conviction for possession with intent to sell and deliver
marijuana. See 2:03-cr-70-1 Docket entry No. (Docket No.) 14
(Dec. 22, 2003) (Notice); see also PSR ¶¶ 38 (1997 conviction),
41 (1999 conviction).
North Carolina employs a determinate sentencing scheme in
which each defendant’s sentencing range is determined by
considering his offense, his prior convictions, and any
mitigating or aggravating factors. See United States v.
Simmons, 649 F.3d 237, 239-240 (4th Cir. 2011) (en banc). At
the time of petitioner’s conviction and sentencing, no binding
Sixth Circuit precedent established how to determine whether a
5
prior North Carolina conviction was “punishable” by more than
one year for purposes of Section 802(44). The Fourth Circuit
had held that courts were to determine whether a prior North
Carolina conviction “is for a crime punishable by a prison term
exceeding one year” -- i.e., is a “felony drug offense” under
Section 802(44) -- by ascertaining whether “any defendant,”
including one with the worst possible criminal history, could
have received a sentence exceeding one year for that offense.
United States v. Harp, 406 F.3d 242, 246 (4th Cir.) (describing
the Fourth Circuit’s approach to evaluating North Carolina
convictions, as set forth in United States v. Jones, 195 F.3d
205 (4th Cir. 1999), cert. denied, 529 U.S. 1029 (2000)), cert.
denied, 546 U.S. 919 (2005). Under that approach, petitioner’s
two North Carolina convictions, when combined with the quantity
of drugs at issue in this case, subjected him to a mandatory
minimum sentence of life imprisonment upon conviction. See 21
U.S.C. 841(b)(1)(A)(iii).
b. On January 26, 2004, petitioner agreed to plead guilty
to the charge pursuant to a written plea agreement. The
agreement included petitioner’s acknowledgement that he was
facing a “mandatory term of life imprisonment without release,”
Docket No. 18, at 2, as well as petitioner’s agreement to “waive
any rights he may have to file any post-conviction motions or
pleadings pursuant to Title 28, United States Code, Section
6
2255,” id. at 9, other than a claim of ineffective assistance of
counsel or prosecutorial misconduct, ibid. In the “Agreed
Factual Basis” (Docket No. 19) that accompanied the plea
agreement, petitioner “stipulated * * * as being true and
correct” both the facts giving rise to the federal charges as
well as the fact that he had been convicted of the 1997 and 1999
North Carolina drug offenses identified in the Section 851
notice.
The district court accepted petitioner’s plea. Petitioner
filed two motions to withdraw the plea, but the district court
denied them. See Docket Nos. 27, 54.
c. The probation officer concluded that petitioner was
subject to a mandatory life sentence based upon the quantity of
drugs at issue (85 grams of crack cocaine and 5 kilograms of
cocaine, PSR ¶ 19), and his two prior qualifying drug
convictions, PSR ¶ 63. Petitioner filed no objections to the
PSR’s recommendations. The district court sentenced petitioner
to the statutorily mandated sentence of life imprisonment.
Docket No. 57 (Judgment).
2. The court of appeals affirmed. 236 Fed. Appx. 996 (6th
Cir.), cert. denied, 552 U.S. 982 (2007). The court rejected
petitioner’s contentions that the government had breached the
plea agreement, that the district court erred in denying his
7
motion to withdraw his plea, and that his sentence was imposed
in violation of his Fifth and Sixth Amendment rights.
3. a. On October 7, 2008, petitioner filed a motion to
vacate his sentence under 28 U.S.C. 2255(a), alleging that (1)
his plea was not made knowingly, voluntarily and intelligently;
(2) trial counsel was ineffective; (3) the government breached
the plea agreement; (4) his sentence was unconstitutionally
enhanced based on facts not found by the jury; (5) his sentence
was unreasonable; and (6) the district judge had a conflict of
interest. Docket No. 73 (Section 2255 motion).
The district court sua sponte dismissed the latter four
claims on the ground that they had been raised and litigated on
direct review. Pet. App. 22; see generally Reed v. Farley, 512
U.S. 339, 358 (1994) (Scalia, J., concurring in part and
concurring in the judgment) (“[C]laims will ordinarily not be
entertained under [Section] 2255 that have already been rejected
on direct review.”). Petitioner appealed that ruling. In 2009,
the court of appeals dismissed the appeal for lack of
jurisdiction. Pet. App. 22-23.
In November 2008, after the district court had dismissed
four of petitioner’s claims, the government filed a response to
petitioner’s remaining two claims. The government argued that
the claims were procedurally barred because petitioner had
raised them on direct appeal and because he had waived his right
8
to file a Section 2255 motion in the plea agreement. The
government also argued that petitioner’s claims lacked merit.
Docket No. 75, at 14-21 (Nov. 6, 2008).
b. In February 2012, petitioner filed a pro se motion to
supplement his Section 2255 motion in which he alleged, for the
first time, that neither of his two prior convictions qualified
as “felony drug offenses” for purposes of the sentencing
enhancement in Section 841(b)(1)(A)(iii). Petitioner relied on
the Fourth Circuit’s intervening decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Docket No. 84
(Feb. 2, 2012). Simmons overruled Harp and reversed Fourth
Circuit law on the test for determining whether a prior North
Carolina drug conviction constitutes a conviction for a “felony
drug offense,” 21 U.S.C. 841(b)(1)(A), i.e., an offense that is
“punishable by imprisonment for more than one year,” 21 U.S.C.
802(44). The Simmons court explained that in Carachuri-Rosendo
v. Holder, 130 S. Ct. 2577, 2586-2588 (2010), this Court held
that whether a second or subsequent state conviction for
possession of a controlled substance qualifies as a “conviction”
for an “aggravated felony” under the immigration laws must be
determined based on the record of that conviction, considering
the defendant’s own criminal history. The Fourth Circuit held
that Carachuri-Rosendo’s reasoning undermined Harp’s holding
that whether a prior conviction constituted a “felony drug
9
offense” should be determined by considering the maximum
sentence that could have been imposed for that offense on a
hypothetical defendant with the worst possible criminal history.
See Simmons, 649 F.3d at 245-247. Overruling Harp, the Simmons
court held that a defendant has not been convicted of a “felony
drug offense” when, based on his criminal history and mitigating
or aggravating factors, the maximum sentence he faced was less
than one year of imprisonment. Id. at 241-245.
Although petitioner relied only on Simmons, in 2008 the
Sixth Circuit had held, consistent with Simmons, that “under the
North Carolina structured [sentencing] scheme,” a defendant’s
“prior record level dictates his sentencing exposure and,
consequently, it must be considered in determining whether [the
defendant’s] convictions were ‘punishable’ for a term exceeding
one year.” United States v. Pruitt, 545 F.3d 416, 423 (6th Cir.
2008); see id. at 424 (rejecting Harp’s reliance on the
hypothetical defendant with “the worst possible criminal
history”).
c. In March 2012, the district court denied petitioner’s
Section 2255 motion and the motion to supplement. The court
denied the claims raised in petitioner’s original Section 2255
motion based on the relitigation bar and petitioner’s
collateral-review waiver in his plea agreement. Pet. App. 4-13.
10
The district court denied petitioner’s motion to supplement
his Section 2255 motion on three procedural grounds, which the
court raised sua sponte, without inviting the government to file
a response to the motion to supplement or to the court’s
proposed disposition. First, the court concluded the
petitioner’s Simmons claim was untimely because petitioner did
not assert it until 2012, several years after the one-year
statute of limitations applicable to Section 2255 motions had
expired, 28 U.S.C. 2255(f), and the claim did not “relate[]
back” to the claims in his timely filed Section 2255 motion.
Pet. App. 15-16; see Mayle v. Felix, 545 U.S. 644, 659 (2005)
(later-asserted claim must share “a common core of operative
facts” with the claims in an original Section 2255 motion).
Second, the court held that even if petitioner’s Simmons claims
were timely, the proposed amendment would have been “futile”
because petitioner’s Simmons claim was “barred by the
retroactivity doctrine announced in Teague v. Lane, 489 U.S. 288
(1989).” Pet. App. 16. Third, the court concluded that
petitioner had procedurally defaulted his sentencing claim by
failing to raise it on direct appeal. Id. at 17-19 & n.3.
The district court declined to issue a certificate of
appealability (COA) on any of petitioner’s claims on the ground
that reasonable jurists would not find the court’s assessment of
the merits or the procedural bars debatable. Pet. App. 19-21;
11
Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court
observed, however, that petitioner’s Simmons claim was “quite
troubling” because “it appears that, under a proper
interpretation of North Carolina’s structured sentencing law,
[petitioner] would not have had qualifying predicate offenses to
impose an enhanced sentence of life.” Pet. App. 20. The court
explained that according to the PSR, the maximum sentences that
petitioner faced for his North Carolina convictions were both
under one year of imprisonment. Id. at 14 n.2. As a result,
the court stated, “[t]he equities seemingly fall on
[petitioner’s] side.” Id. at 20. Nonetheless, because the
court believed that it had “applied the procedural rules
correctly,” it declined to issue a COA on petitioner’s Simmons
claim. Id. at 21.
4. Petitioner requested a COA from the court of appeals
“with respect to a single issue,” namely, whether his mandatory
life sentence “should be vacated because his prior drug
convictions no longer qualify as predicate felony drug offenses
according to [Simmons].” Pet. App. 23. The court of appeals
declined to issue a COA. Ibid.
The court of appeals reasoned that, when a Section 2255
motion is denied on procedural grounds, a COA should not issue
unless the prisoner can show that reasonable jurists could
debate the correctness of the procedural rulings and the
12
existence of a valid constitutional claim. Pet. App. 23 (citing
Slack, 529 U.S. at 493). Without addressing whether petitioner
had shown that he had a debatable constitutional claim, the
court of appeals concluded that a COA was not warranted because
petitioner had expressly waived his right to file a collateral
attack on his conviction and sentence. Id. at 23-24.
DISCUSSION
Petitioner contends (Pet. 5-13) that the court of appeals
erred in denying a COA on his argument that his mandatory
sentence of life imprisonment was erroneously imposed. Plenary
review of the court of appeals’ denial of a COA is not
warranted. In the view of the United States, however, the court
of appeals erred in denying petitioner’s application for a COA.
Accordingly, the petition should be granted, the judgment
vacated, and the case remanded for further proceedings
consistent with the position expressed in this brief.
1. A federal prisoner seeking to appeal the denial of a
motion to vacate his sentence under Section 2255 must obtain a
COA. See 28 U.S.C. 2253(c)(1)(B). To obtain such a
certificate, the prisoner must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. 2253(c)(2).
Where, as here, a district court denies a claim raised in a
Section 2255 motion on procedural grounds, the prisoner must
make two threshold showings: “[1] that jurists of reason would
13
find it debatable whether the [Section 2255 motion] states a
valid claim of the denial of a constitutional right and [2] that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Gonzalez v.
Thaler, 132 S. Ct. 641, 648 (2012) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)). The lower courts erred in concluding
that petitioner could not meet this standard.
2. Petitioner can make a substantial showing that he was
subjected to an erroneous mandatory minimum sentence and the
resulting mandatory life term of imprisonment violates his
constitutional right to due process.
a. Petitioner was sentenced to a mandatory minimum
sentence of life imprisonment based on a statutory recidivist
enhancement that applies only when an individual has two prior
convictions for “felony drug offense[s]” -- i.e., drug-related
offenses that were “punishable by imprisonment for more than one
year,” 21 U.S.C. 802(44). 21 U.S.C. 841(b)(1)(A)(iii). At the
time petitioner was sentenced, the Fourth Circuit had held that
a prior North Carolina state court drug conviction qualified as
a “felony drug offense” under Section 802(44) if a hypothetical
worst offender could have received a sentence of more than one
year in prison. See United States v. Harp, 406 F.3d 242, 232,
246 (4th Cir.), cert. denied, 546 U.S. 919 (2005); see also
United States v. Jones, 195 F.3d 205 (4th Cir. 1999), cert.
14
denied, 529 U.S. 1029 (2000). Under the approach employed in
Harp, petitioner’s two prior North Carolina convictions
qualified as “felony drug offense[s]” under Section 802(44).
In 2008, however, the Sixth Circuit held in United States
v. Pruitt, 545 F.3d 416 (2008), that in order to determine
whether a prior North Carolina drug offense was “punishable” by
a term of imprisonment exceeding one year, the court must
determine the defendant’s sentencing exposure in light of the
defendant’s own criminal history, rather than calculating the
maximum exposure using a hypothetical defendant with the worst
possible criminal history. Id. at 423-424. A few years later,
the Fourth Circuit reached the same conclusion in United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Simmons
overruled Harp and held that if, under North Carolina’s
sentencing scheme, the defendant did not face a sentence of more
than one year based on his criminal history, his conviction does
not qualify as a “felony drug offense” as defined in 21 U.S.C.
802(44). See generally Burgess v. United States, 553 U.S. 124,
130 (2008) (“[T]he term ‘felony’ is commonly defined to mean a
crime punishable by imprisonment for more than one year.”).
Pruitt and Simmons arose on direct review. The Sixth
Circuit has not had occasion to decide whether Pruitt’s rule
applies retroactively to cases on collateral review. The Fourth
Circuit has held, however, that Simmons is retroactively
15
applicable on collateral review. Miller v. United States, 735
F.3d 141, 145-146 (2013). As the Fourth Circuit explained,
Simmons announced a new substantive rule of statutory
construction that applies retroactively because the decision
clarified that certain North Carolina “convictions do not
qualify as predicate felonies for purposes of federal law.”2 Id.
at 146. As a result, Simmons narrowed the class of persons who
can be subject to the sentencing enhancements set forth in
Section 841(b)(1)(A)(iii). See Schriro v. Summerlin, 542 U.S.
348, 353 (2004) (substantive rules include those that
“prohibit[] the imposition of punishment on a particular class
of persons”). That reasoning would apply equally to Pruitt,
which announced the same rule as Simmons. Cf. United States v.
Jones, 689 F.3d 621, 625-626 (6th Cir. 2012) (holding that Begay
v. United States, 553 U.S. 137 (2008), which held that a state
conviction for drunk driving is not a “violent felony” for
purposes of the recidivist sentencing enhancement Armed Career
Criminals Act, announced a substantive rule of statutory
construction that is retroactive to cases on collateral review).
2 Petitioner incorrectly states that Miller held that
Simmons involved a “new rule of constitutional law that applies retroactively on collateral review.” Pet. 5 (emphasis added). Simmons’s holding rested on statutory construction, not constitutional interpretation.
16
Under the analysis set forth in Pruitt and Simmons,
petitioner’s prior North Carolina convictions were not properly
classified as felonies because his criminal record did not
subject him to a sentence of at least one year in prison.
Petitioner is therefore correct that he did not have two prior
convictions for a “felony drug offense” and that he should not
have been subject to a mandatory life sentence under Section
841(b)(1)(A)(iii).
b. The erroneous imposition of a mandatory minimum
sentence is a constitutional error sufficient to support
issuance of a COA. See 28 U.S.C. 2253(c)(2). A defendant
convicted of a drug offense under Section 841 involving the
quantities of cocaine at issue here, with no qualifying prior
“felony drug offense[s],” ordinarily would have faced a
statutory sentencing range of ten years to life. 21 U.S.C.
841(b)(1)(A)(iii) (2000). Petitioner, however, was subject to a
mandatory minimum sentence of life imprisonment based on the
sentencing court’s conclusion that petitioner had two prior
“felony drug offense[s].” That conclusion is erroneous under
Pruitt, and the error is a substantive one that may be raised on
collateral review. The error also produced a due process
violation by depriving the sentencing court of discretion to
impose a lower sentence (between ten years and life) after
17
considering all of the mitigating and aggravating factors
surrounding the offense.
This Court has held that a similar error -- the erroneous
imposition of a mandatory minimum sentence under state law and
the resulting deprivation of sentencing discretion -- violated
due process. In Hicks v. Oklahoma, 447 U.S. 343 (1980), Hicks
received a mandatory 40-year sentence that was later shown to be
erroneous under state law. Id. at 345-346. The state court
nevertheless affirmed Hicks’ 40-year sentence on the ground that
it was “within the range of punishment that could have been
imposed in any event.” Id. at 345. This Court reversed,
holding that the erroneous mandatory minimum violated Hicks’ due
process rights because Hicks “ha[d] a substantial and legitimate
expectation that he [would] be deprived of his liberty only to
the extent determined by the jury in the exercise of its
statutory discretion, and that liberty interest is one that the
Fourteenth Amendment preserves against arbitrary deprivation by
the State.”3 Id. at 346 (citation omitted). In light of Hicks,
reasonable jurists considering petitioner’s mandatory minimum
life sentence would find it at least debatable that the
3 Although the sentencer that was improperly deprived of all
discretion in Hicks was the jury, Hicks “is not, however, limited to imposition of sentences by juries.” Prater v. Maggio, 686 F.2d 346, 350 n.8 (5th Cir. 1982).
18
sentencing court’s erroneous deprivation of all discretion to
impose a lesser sentence violated due process.
3. In this case, the lower courts did not consider whether
petitioner had made a substantial showing that his life sentence
violates due process because they denied petitioner a COA on
procedural grounds. Petitioner can show, however, “that jurists
of reason would find it debatable whether” the lower courts were
“correct in [their] procedural ruling[s].” Gonzalez, 132 S. Ct.
at 648.
The district court held that petitioner’s sentencing
challenge was time-barred, Teague-barred, and procedurally
defaulted, and the court of appeals held that petitioner’s claim
was encompassed within his plea-agreement waiver of his right to
collaterally attack his sentence. Pet. App. 16-19, 23-24. Both
courts raised these defenses sua sponte, without inviting the
government to respond to petitioner’s Simmons claim, which he
raised in a motion to supplement after the government had filed
its response to the claims asserted in petitioner’s initial
Section 2255 motion. The lower courts had discretion to raise
these defenses on their own motion. See Day v. McDonough, 547
U.S. 198, 205-206 (2006) (holding that courts may raise AEDPA
statute of limitations sua sponte; also noting that courts of
appeals have held courts may raise procedural default sua
sponte); Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (non-
19
retroactivity); see also Jones, 689 F.3d at 624 n.1 (plea
agreement waivers).
Reasonable jurists could conclude, however, that the lower
courts abused their discretion by not affording the parties an
opportunity to comment on the propriety of raising these
defenses. As this Court recently explained with respect to the
statute of limitations defense, “a federal court does not have
carte blanche to depart from the principle of party presentation
basic to our adversary system,” and a court may choose to raise
the limitations defense sua sponte only where “the State does
not ‘strategically withh[o]ld the defense or cho[o]se to
relinquish it,’ and where the petitioner is accorded a fair
opportunity to present his position.” Wood v. Milyard, 132 S.
Ct. 1826, 1833-1834 (2012). The Court thus recognized that the
government may, in an appropriate case, deliberately and
consciously decline to assert non-jurisdictional defenses.4 Id.
at 1834. When the government does so, “[i]t would be an abuse
of discretion * * * for a court” to address the defense and
thereby “override a State’s deliberate waiver.” Ibid.
4 For the reasons discussed above, the district court erred
in holding that the rule announced in Pruitt and Simmons is not retroactive. See pp. 14-15, supra; Pet. App. 16. But even if the rule were not retroactive, the government would be entitled to waive the affirmative defense of non-retroactivity in appropriate cases. See Danforth v. Minnesota, 552 U.S. 264, 289 (2008) (citing Collins v. Youngblood, 497 U.S. 37, 41 (1990)).
20
The lower courts thus erred by not affording the parties
the opportunity to express their views on the propriety of
raising the defenses on which the courts relied, all of which
were non-jurisdictional and therefore waivable. Had the courts
done so, the government would have had an opportunity to decide
whether the interests of justice counseled in favor of waiving
the defenses and permitting the lower courts to reach the merits
of petitioner’s claim. See, e.g., Mungro v. United States, Nos.
5:11–cv–141–RLV & 5:04–cr–18–RLV–CH–1, 2013 WL 6800822, at *6-*7
& n.3 (W.D.N.C. Dec. 23, 2013) (granting Section 2255 motion to
vacate the prisoner’s mandatory life sentence on Simmons
grounds, and noting that the government had waived “reliance on
the statute-of-limitations defense”); Sturvidant v. United
States, Nos. 3:12–cv–66–FDW & 3:09–cr–39–FDW–6, 2013 WL 6669025,
at *1, *3 (W.D.N.C. Dec. 18, 2013) (granting Simmons relief
after government “declined to enforce” the defendant’s plea-
agreement waiver of the right to collaterally attack his
sentence).
Because petitioner can demonstrate that “jurists of reason
would find it debatable whether” he has asserted a valid claim
of the denial of a constitutional right and whether the district
court’s procedural rulings were correct, Gonzalez, 132 S. Ct. at
648, the court of appeals erred in denying a COA.
21
CONCLUSION
The petition for a writ of certiorari should be granted,
the judgment of the court of appeals vacated, and the case
remanded to the court of appeals for further proceedings in
light of the position expressed in this brief.
Respectfully submitted. DONALD B. VERRILLI, JR. Solicitor General MYTHILI RAMAN Acting Assistant Attorney General MICHAEL A. ROTKER Attorney JANUARY 2014