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

Argument: Courts of appeals that have rejected petitioner's view of Section 2255(e) have held that relief under Section 2241 is available only if an incarcerated individual shows that Section 2255's remedy "was" inadequate or ineffective at the time of the individual's "first § 2255 motion." Pet. App. 7a (emphasis [*8] added); see also McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017) ("The petitioner bears the burden of establishing that the remedy by motion was 'inadequate or ineffective to test the legality of his detention.'") (emphasis added) (internal citation omitted); Prost v. Anderson, 636 F.3d 578, 594 (10th Cir. 2011) (similar). In other words, these courts have focused on the adequacy or efficacy of the remedy under Section 2255 in the past. This reasoning departs from the plain text of that statute. The relevant text of Section 2255(e) focuses on the present. It allows federal prisoners to seek habeas relief under Section 2241 when the remedy provided by Section 2255 " is inadequate or ineffective to test the legality of [their] detention." 28 U.S.C. § 2255(e) (emphasis added). Put another way, this saving clause asks whether Section 2255's remedy is currently inadequate or ineffective, not whether it was inadequate or ineffective.

Table of Contents Included in Document 

Memorandum in Support of Habeas Petition in Child Sex Abuse Case

Open Records Request

Letter to Defense Expert

Application for Writ of Habeas Corpus 

Moiton for New Trial 

Motion for Issuance and Enforcement of Subpoena for Additional Medical Records 

Ruling on Motion for New Trial and Ruling by Georgia Court of Appeals

Argument: With proper investigation, preparation, and presentation by the defense in this case, there is absolutely overwhelming evidence that supports Mr. Nowill's total innocence. Mr. Nowill is presently seven years into the service of his sentence of thirty years in prison because, to date, no sitting judge or sitting jury had presented to them the complete evidence in this case for their consideration. Mr. Nowill is, in fact, innocent.

Mr. Nowill is the father of the alleged victim, Heather Nowill. On August 13, 2000, Heather, then aged 16, claimed that her father had been having a sexual relationship with her over the previous four years since she was 12 years old. She claimed this sexual relationship involved digital penetration of her vagina, mutual oral sex between she and her father, and full acts of sexual intercourse with complete and full penetration of her vagina by her father's penis occurring 3 to 4 times weekly for the duration of the 4 year period of time. Stunned when he first confronted with these allegations on the day of her outcry, and continuing for 2 years including his testimony before the jury in this case, Mr. Nowill denied any sexual contact with his daughter and consistently has maintained his innocence.

On the day of her alleged outcry Heather was required to undergo a medical examination at University Hospital. The complete report of this examination was not provided to trial counsel by the State. Trial counsel did not independently request of subpoena the medical records of the examination. The State did not call the doctors who performed the medical examination to testify in the trial. Also, despite the extensive and ongoing allegations of intercourse by Heather, trial counsel did not request or subpoena the medical records from her regular doctor throughout the period of time in question. With virtually nothing except the word of the alleged victim the case proceeded to trial. Even law enforcement personnel admitted there was absolutely no physical evidence to support the allegation.

Brief of the National Association of Criminal Defense Lawyers and Due Process Institute as Amici Curiae in Support of Petitioner (On Petition for a Writ of Certiorari). 

Argument: Without addressing the relevant text or history, the Eleventh Circuit held that, for purposes of the COA statute, a “proceeding under section 2255” extends beyond identifying a defect in custody—habeas’s historic outer limit—to also include the process of choosing an appropriate remedy. The court of appeals erred by reading the jurisdictional limits in the Antiterror-ism and Effective Death Penalty Act (“AEDPA”) in isolation from—rather than in pari materia with—the jurisdictional grants that they were enacted to restrain. Read together, sections 2255 and 2253 communicate Congress’s unambiguous intent that a “proceeding under section 2255” has the same scope as a traditional proceeding for habeas corpus. This Court’s habeas precedents, in turn, make clear that the scope of that proceeding does not include selecting a remedy. review is warranted 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. COAs are available only for constitutional claims, but the choice of post-conviction remedy is an almost purely statutory procedure, and, as a practical matter, no COA could ever issue to a defendant in petitioner’s position. This Court’s review is needed to resolve that split and correct the Eleventh Circuit’s misinterpretation of the statutes governing federal post-conviction review.

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.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent.

Argument: AEDPA does not restrict habeas review of a properly presented federal claim that the state courts overlooked and ignored. If a state court issued an opinion that failed to address a properly presented federal claim, a habeas court should not presume that the claim was nonetheless adjudicated. Contrary to the warden’s alternative argument, the adjudication of a state-law claim does not adjudicate a factually related, but omitted, federal-law claim.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in support of appellant.

Argument: Because Federal Rule of Appellate Procedure 4(a)(7) is not jurisdictional, it must be construed in favor of preserving a party’s right to appeal. Parties must have clear notice of the event that starts the clock running for filing a notice of appeal. Construing Federal Rule of Appellate Procedure 4(a)(7) as starting the time running for the filing of a notice of appeal before the decision appealed from is available to the appellant thwarts appellant’s ability to consult with his counsel and to make an informed decision whether to take an appeal.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Respondent.

Argument: Prosecutors and defendants must be able to rely on the present state of substantive law in their decision-making processes.

Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Petitioner-Appellant's Petition for Rehearing En Banc.

Argument: The panel's ruling conflicts with decisions of the First, Second, and Fifth Circuits. The notice of appeal became timely on September 30, 2005, when it was transmitted to this court. Because the district court violated FRAP 3(d) by failing promptly to forward Washington's notice of appeal, the appeal should not have been dismissed. The panel's bar on use of a rule 60(B) motion to render a notice of appeal timely conflicts with the Sixth Circuit and Mackey. The panel opinion conflicts with this court's decision in Mackey and the Supreme Court's decision in Hill. The panel opinion conflicts with Sixth Circuit precedent. The panel did not follow a "majority rule." The panel's "identical grounds" rule is unsound and would not apply to Washington. The panel's refusal to permit 60(b) relief conflicts with the language and purpose of the federal rules.

Brief of Amici Curiae National Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice in Support of Petitioner-Appellant.

Argument: California law allowing holdout jurors to be dismissed affects matters of exceptional importance, and this court should grant en banc review to ensure that the law was not misapplied. Holdout jurors play an essential role in the criminal justice process. California defendants are entitled to juries that can decide their cases independently and conscientiously. California defendants have a right to an appellate system that functions as the California Constitution and AEDPA intended. The panel's decision eliminates one of the few paths to federal review that AEDPA preserves for state-court defendants. The panel's treatment of appellate court factfinding is inconsistent with this court's prior practice.

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

Argument: It is crucial that avenues remain open to assert claims based on newly discovered evidence of innocence. Innocent convicts face enormous challenges in uncovering and litigating new evidence of innocence. The Section 2255 Savings Clause requires meaningfully adequate consideration of newly discovered evidence of innocence. The Court should eliminate its requirement that motions for authorization to file successive habeas petitions be limited to the Court's pre-printed form.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for Writ of Certiorari).

Argument: The circuit split makes Rule 60(b)'s safety valve of relief from judgment in "extraordinary" cases available only to prisoners in certain circuits. Deciding whether Martinez and Trevino can ever for part of the basis for "extraordinary circumstances" justifying Rule 60(b) relief is particularly important in capital cases. Gonzalez held that intervening supreme court decisions are not sufficient for Rule 60(b) relief, but did not hold such decisions could not form part of the basis for such relief.

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 Texas court’s prejudice ruling on the Brady violations disregards the realities of criminal trial practice. Sound criminal trial practice discourages exploratory cross-examination. Impeachment is critical to effective cross-examination. The Texas court’s ruling on the Caston Deal ignores sound trial practice. The Texas court’s ruling on the prior inconsistent statements is similarly flawed. The Texas court’s errors reflect broader confusion over how to analyze prejudice from Brady violations. The Texas court’s refusal to conduct cumulative error analysis ignores the real-world interactions among multiple errors. Multiple constitutional violations may combine to render a trial fundamentally unfair. Cumulative error analysis is imperative for Brady and Strickland violations.