Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae Supporting Reversal (on petition for rehearing en banc)

Argument: The panel decision conflicts with Class v. United States, __ U.S. __, 138 S.Ct. 798 (2018); United States v. Slone, 411 F.3d 643, 646-49 (6th Cir. 2005); and decisions from other federal courts of appeals and this Court should grant en banc review to address whether defendants waive the right to raise as-applied constitutional challenges to their statutes of conviction by pleading guilty and the standard of review that applies to those challenges. In conflict with District of Columbia v. Heller, 554 U.S. 570 (2008); Tyler v. Hillsdale Cnty. Sherriff’s Dep’t, 837 F.3d 678 (6th Cir. 2008) (En Banc); and decisions from other federal courts of appeals, the panel did not apply heightened scrutiny to determine the constitutionality of restrictions on individual second amendment protections, and this court should grant rehearing en banc to resolve this conflict and address important questions about the analytical framework and level of scrutiny courts must apply to restrictions on these protections. 

Brief of the Idaho Association of Criminal Defense Lawyers and the National Association of Criminal Defense lawyers as Amici Curiae in Support of Petitioner.

Argument: A presumption of prejudice is appropriate because defendants often succeed on appeal despite waivers. Defendants often succeed on appeal based on issues beyond the scope of their particular waivers. Defendants often succeed on appeal even on claims within the scope of a waiver. The decisions below ignores the potential for meritorious claims even in cases involving appeal waivers. Postconviction proceedings are not an adequate substitute for direct appellate review. Claims that are not raised on direct appeal generally cannot be raised in postconviction proceedings. Higher standards apply in postconviction proceedings. There is no constitutional right to counsel in postconviction proceedings.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: AEDPA deference should not apply to decisions of state-court jurists who labor under a probability of actual bias. Due process requires a judge free from the “Probability of Actual Bias.” Petitioner’s state post-conviction appeals were tainted by the probability of actual bias. The federal district court accorded AEDPA deference despite the probability of actual bias. Lower courts are split over whether federal habeas petitioners may challenge state post-conviction procedures that violate due process. The question presented is important because state courts are the “primary”— and, in almost every case, the only – “forums” for vindicating prisoners’ federal constitutional rights. 

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Respondent/Cross Petitioner’s Motion for Reconsideration

Argument: The majority opinion is out of step with other jurisdictions in the United States, which uniformly have found trial counsel’s failure to investigate and introduce testimony from a credible, neutral alibi witness to be prejudicial. By creating a split on an issue where the courts are otherwise uniform, the majority opinion risks cascading consequences for habeas claims around the nation.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner.

Argument: Non-unanimous juries are fundamentally different and less deliberative than the Sixth Amendment requires. Non-unanimous juries also fundamentally skew the decision of whether to exercise the jury trial right. The pernicious racial origins of the non-unanimity rule further undermine the Sixth Amendment jury trial right.

Brief of Amici Curiae In Support of the Board of Professional Responsibility.

Argument: The plain language of the rule, consistent with the board’s interpretation, requires disclosure of all information that negates guilt, not merely information that may qualify as “material” under Brady. Further, the language requires such disclosure occur in an expeditious manner. Public policy is served by having an ethical rule that does not merely track the constitutional minimum. The board has not engaged in improper rule making but has interpreted a properly-adopted rule.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner.

Argument: Principled rationales for punishment do not justify criminal responsibility for individuals who lack moral culpability. None of the punishment embraced by American criminal law justifies punishing people who lack moral capacity. The insanity defense has protected from criminal punishment individuals who lack moral culpability. Abolishing the insanity defense, as Kansas has done, allows people who lack moral culpability to be imprisoned and executed.

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: TEX. PENAL CODE ANN. § 42.07(a)(7) violates the First Amendment. Various state statutes confuse the law by proscribing electronic or telecommunication (putative) harassment

Brief of Amici Curiae National Association of Criminal Defense Lawyers, Cato Institute, and Due Process Institute in Support of Plaintiffs-Appellants.

Argument: Unfair and abusive uses of asset forfeiture by government agencies underscore the importance of due process protections in this case. Due process requires a prompt post-deprivation hearing when the government seeks forfeiture of a vehicle. Relevant Supreme Court and federal court precedent generally require a pre-deprivation hearing, but still require a post-seizure hearing for seizure of vehicles. The factors in Mathews v. Eldridge weigh strongly in favor of a prompt post-seizure hearing.

Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: Qualified immunity regularly denies justice to those deprived of federally guaranteed rights. Official misconduct is a pressing public concern, and Section 1983 liability is often the law’s only mechanism for remedying it. Qualified immunity regularly excuses public officials for unconstitutional misconduct. Qualified immunity imposes prohibitive and unjustified costs on civil-rights litigants. Qualified immunity harms public officials by eroding public trust and undermining the rule of law.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant’s Petition for Rehearing and Rehearing En Banc

Argument: The panel’s decision is inconsistent with background principles of forfeiture, congressional intent, Supreme Court precedent, and constitutional limitations. Neither Section 924(D) nor Section 853(P) permits entry of a money judgment as “substitute property” subject to forfeiture 

Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: Qualified immunity regularly denies justice to those deprived of federally guaranteed rights. Official misconduct is a pressing public concern, and Section 1983 liability is often the law’s only mechanism for remedying it. Qualified immunity regularly excuses public officials for unconstitutional misconduct. Qualified immunity imposes prohibitive and unjustified costs on civil-rights litigants. Qualified immunity harms public officials by eroding public trust and undermining the rule of law.

Motion for Leave to File Brief of Amicus Curiae and Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari).

Argument: The decision below contradicts this court’s holdings that the Sixth Amendment guarantees an “adequate opportunity to cross-examine” the declarant with respect to out-of-court testimony.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers as Amicus Curiae In Support of Petitioner

Argument: Congress’s definition of burglary as surreptitiously remaining embodies a contemporaneous intent requirement. Eliminating burglary’s contemporaneous intent requirement would violate the principles of due process and separation of powers underlying the rule of lenity.

Brief of FAMM and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: The question that has divided the circuits is of critical importance to thousands of federal prisoners. The decision below gravely misreads the federal post-conviction relief statute. The Eighth Circuit’s rule contradicts the plain text of § 2244. The Eighth Circuit’s rule leads to arbitrary results. The severity of the consequences to petitioner and many others similarly situated – and the disutility of their sentences to society – underline the urgency of granting review.