Friend of the Court Lisa Kemler

Brief for the National Association of Criminal Defense Lawyers and the American Civil Liberties Union as Amici Curiae in Support of Petitioner.

Argument:  Ineffective assistance of counsel in an initial-review collateral proceeding should excuse the default of a substantial ineffective-assistance-of-appellate-counsel claim. The right to effective appellate counsel is critically important to the fair administration of criminal justice. Defendants cannot raise ineffective assistance of appellate counsel on direct appeal and are ill-equipped to present that claim on collateral review without counsel’s assistance. Unless Martinez applies to appellate-ineffectiveness claims, attorney error in the initial-review collateral proceeding will likely deprive the prisoner of any opportunity for review. 

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner's petition for writ of certiorari.

Argument: The Supreme Court should grant the petition for writ of certiorari. Congress and this Court have increasingly preferred collateral review, rather than direct appeals, for supervising civilian criminal convictions. Post-conviction review of military convictions has followed the opposite pattern. In the military context, collateral review of criminal convictions is severely limited to whether the military court gave "full and fair consideration" to defendant's constitutional claims. And unlike civilian criminal convictions, Congress has explicitly indicated its desire for the Court to exercise a more aggressive supervisory role over military convictions. This case is appropriate candidate for such supervision.

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant and Reversal

Argument: Honeycutt pronounced a new substantive rule that applies retroactively on collateral review. Honeycutt changed the landscape of criminal forfeiture. Honeycutt’s rule is substantive and therefore applies retroactively on collateral review. A criminal forfeiture order entered without authority of law is a fundamental error warranting extraordinary relief. The government’s seizure of property without lawful authority violates fundamental principles of due process. Forfeiture orders based on joint and several liability violate the Eighth Amendment when the defendant received no proceeds from the crime. Permitting a forfeiture order entered without legal authority to stand serves no legitimate public interest.