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Brief in Support of Petitioner
8th Circuit Court of Appeals
In this brief, we argued that the Bureau of Prisons has misinterpreted the First Step Act to deny earned time credits to individuals serving sentences that include both eligible and ineligible offenses, unnecessarily extending their time in prison. The Act’s history, structure, and purpose show that Congress intended earned time credits to broadly incentivize rehabilitation, reduce recidivism, and lower incarceration costs. At a minimum, the statute is ambiguous about whether people in Mr. Davis’s position may earn credits, and the rule of lenity requires resolving that ambiguity in favor of liberty.
Filed with the Cato Institute.
We thank Timothy W. Grinsell of Reitler Kailas & Rosenblatt LLP for his pro bono work on this issue.
Brief in Support of Petitioner
U.S. Supreme Court
Michael Bowe is legally innocent of the charge of discharging a firearm during the commission of a “crime of violence.” Nonetheless, the Eleventh Circuit is denying him the right to demonstrate this through the atextual application of 28 U.S.C. § 2244(b)(1) to his claims. Congress enacted section 2244(b)(1) to preclude only state prisoners from filing successive petitions for habeas corpus. Mr. Bowe is a federal prisoner to whom section 2244(b)(1), by its terms, does not apply. This Court should exercise its jurisdiction and reverse the Eleventh Circuit’s decision.
Filed with the Civil Rights Clinic at the University of Virginia School of Law, Rights Behind Bars, Legal Aid Justice Center, and Fair and Just Prosecution.
We thank Juan O. Perla, T. Barry Kingham, Robert Garcia, and Joseph Muschitiello of Curtis, Mallet-Prevost, Colt & Mosle LLP for their pro bono support on this case.
Brief in Support of Petitioners
U.S. Supreme Court
We argue defendants who were originally sentenced before the effective date of the First Step Act should still benefit from resentencing. This can make a tremendous difference in the life of a defendant. For example, applying the First Step Act at resentencing for the petitioner would result in an 80- year reduction in his mandatory minimum, from 105 years to 25 and the impact in other cases would be similarly stark.
Filed with Cato Institute, ACLU, ACLU of Texas, FAMM, and NACDL.
In a 5-4 decision, the Supreme Court ruled defendants who were originally sentenced before the effective date of the First Step Act should still benefit from resentencing. You can read the opinion here.
We thank Kevin Poloncarz, Julia Barrero, and Jared Gilmour of Covington & Burling LLP for their pro bono work on this case.
Brief in Support of Certiorari
U.S. Supreme Court
Similar to our amicus brief in Carpenter v. United States, we argue defendants who were originally sentenced before the effective date of the First Step Act should still benefit from resentencing. This can make a tremendous difference in the life of a defendant. For example, applying the First Step Act at resentencing for the petitioner would result in an 80- year reduction in his mandatory minimum, from 105 years to 25 and the impact in other cases would be similarly stark.
Filed with Cato Institute, ACLU, and ACLU of Texas.
The Supreme Court granted cert. in this case on July 2, 2024.
Brief in Support of Certiorari
U.S. Supreme Court
The First Step Act made momentous changes to two federal sentencing schemes—for certain firearm and controlled substances offenses—to end these grossly overlong and disproportionate mandatory sentences. In this amicus brief, we argue defendants who were originally sentenced before the effective date of the Act should still benefit from resentencing. This can make a tremendous difference in the life of a defendant. For example, applying the First Step Act at resentencing for the petitioner would result in an 80- year reduction in his mandatory minimum, from 105 years to 25 and the impact in other cases would be similarly stark.
Filed with ACLU and Cato Institute.
Petition for certiorari denied February 20, 2024.
Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we argue that the Eleventh Circuit disregarded foundational principles underlying federal habeas review: deference and comity to state courts. And this relitigating of a procedural issue clearly resolved by a state court has produced an unworkable and burdensome approach that will consume the limited resources of the lower courts.
Petition for certiorari denied February 27, 2023.
We thank Keith Bradley, Adam Fox, Kevin Kumar, Nicola Cohen, Robert Devling, and Dara Mann of Squire Patton Boggs LLP for their pro bono work on this issue.
Brief in Support of Petitioner
U.S. Supreme Court
When Congress passed the First Step Act of 2018, they applied the Fair Sentencing Act retroactively to address the sentencing disparity between crack and powder cocaine offenses. In this amicus brief, we argue that resentencing under Section 404(b) of the First Step Act should also include factual and legal developments that postdate the original sentence. By precluding courts from considering these developments, the government’s interpretation of the law handicaps a judge’s ability to effectuate Congress’s intent to reduce racial disparities in criminal sentencing and provide the fairest possible outcomes in the resentencing process.
The Supreme Court agreed with Due Process Institute that courts can consider changes in law and/or fact when resentencing under Section 404(b) of the First Step Act. You can read the 5-4 decision here.
Filed with American Civil Liberties Union, ACLU of Massachusetts, and Southern Poverty Law Center.
We thank Bradley N. Garcia, Kendall Turner, and Bruce Pettig of O’Melveny & Myers for their pro bono work on this case.
Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we argue that the court erred in their application of the Antiterrorism and Effective Death Penalty Act and defendants should have traditional proceedings for habeas corpus. Furthermore, review is warranted in this case because requiring a certificate of appealability prior to appellate review of a choice of remedy under § 2255(b) would be the functional equivalent of abolishing review altogether.
The court must reconsider its decision or hundreds of thousands of prisoners with meritorious claims cannot receive both the appeal to which they are entitled and the opportunity to be sentenced in full accordance with the law.
Filed with NACDL.
Petition for certiorari denied March 22, 2022.
We thank Collin Wedel, Jeffrey Green, and Gabriel Schonfeld of Sidley Austin LLP for their pro bono work on the issue.
Brief in Support of Certiorari
U.S. Supreme Court
Similar to our amicus brief in Tabb v. United States, this brief argues the courts do not owe deference to agency commentary that creates harsher sentences. By applying Stinson deference, courts increase the Sentencing Guidelines range approved by Congress and deny the core constitutional principles of lenity and due process. We urge the court to reconsider its outdated position and protect the rights of defendants.
Filed with the New Civil Liberties Alliance.
Petition for certiorari denied January 18, 2022.
Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we challenge the sentencing enhancements based on the Fourth Circuit’s misapplication of the categorical approach–the determination of whether a conviction meets the criteria of a certain category of offense. The court’s misapplication was expanding the meaning of statute terms like “abusive” and “relating to” and creating a nearly boundless inquiry that flouts the uniformity and notice principles on which the categorical approach is based. This expansion has collateral and far-reaching consequences by enhancing mandatory minimums and increasing the number of inconsistent and unjust sentences.
Filed with NACDL.
Petition for certiorari denied on January 10, 2022.
We thank Jamie Crooks, Alexander Rose, and Eric Chianese of Fairmark Partners, LLP for their pro bono work on this case.
Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we argue courts should not provide deference to the US Sentencing Commission unless the three requirements set by Kisor v. Wilkie are met. Deference is only owed if the agency’s regulation is genuinely ambiguous, the reading of the regulation is reasonable, and the interpretation entitles the agency to a controlling weight. If this entire criteria is not fulfilled, criminal defendants are entitled to lenity and courts must not reflexively accept implausible readings of the US Sentencing Guidelines.
Petition for certiorari denied June 22, 2021.
Due Process Institute thanks Theodore Howard, Boyd Garriott, and Lukman Azeez of Wiley Rein for their pro bono work on this case.
Amicus Brief in Support of Certiorari
U.S. Supreme Court
TOPICS: rule of lenity; agency deference
This amicus brief tackles the tension arising from two principles: Stinson deference to an agency’s interpretation of its rules and the rule of lenity. Because the rule of lenity requires courts to interpret ambiguities in criminal statutes in favor of criminal defendants, courts must not “reflexively” accept the U.S. Sentencing Commission’s commentary on ambiguous Sentencing Guidelines. The proper application of the principles of lenity advances due process, the separation of powers, and other fundamental constitutional protections.
Filed with The New Civil Liberties Alliance.
Brief in Support of Certiorari
U.S. Supreme Court
TOPICS: rule of lenity; agency deference
This brief argues the courts do not owe deference to agency commentary that creates harsher sentences. By applying Stinson deference, courts increase the Sentencing Guidelines range approved by Congress and deny the core constitutional principles of lenity and due process. We urge the court to reconsider its outdated position and protect the rights of defendants.
Filed with The New Civil Liberties Alliance.
Petition for certiorari denied June 21, 2021.
Brief in Support of Cross-Appellee
6th Circuit Court of Appeals
This brief explores whether reforms to mandatory minimum sentences adopted by Congress in the First Step Act apply to defendants whose pre-Act sentences were vacated on appeal after the Act’s adoption and whether such individuals should receive the benefit of reforms Congress passed.
Filed with the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union of Ohio Foundation, R Street Institute, and Americans for Prosperity Foundation.
The Sixth Circuit unfortunately ordered resentencing pursuant to the law before the First Step Act. You can read the court’s opinion here.
We thank Jonathan D. Hacker and Alec Schierenbeck of O’Melveny & Myers LLP for their pro bono work on this case.
Brief in Support of Certiorari
U.S. Supreme Court
When a defendant on collateral review successfully challenges one or more of their Armed Career Criminal Act predicate convictions, can the Government resurrect an ACCA-enhanced sentence by substituting new predicate convictions without prior notice? We ask the Court to establish clarity and consistency on a sentencing question that impacts thousands of people.
Filed with the National Association of Criminal Defense Lawyers.
Petition for certiorari denied April 19, 2021.
Due Process Institute also thanks Thomas Burns for his pro bono work on this issue