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Russo v. United States
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.
McCarthan v. Warden
En Banc Brief of Amici Curiae National Association of Criminal Defense Lawyers in Support of Petitioner-Appellant.
Argument: Section 2255 relief is "inadequate or ineffective" if the petitioner does not have a "genuine opportunity" to challenge his sentence. The weight of appellate authority suggests that a section 2255 proceeding is "inadequate or ineffective" if the petitioner lacks a "genuine opportunity" to challenge his sentence. The Savings Clause’s text, structure, and history confirm the majority view. An opportunity to challenge a sentence is not genuine if the challenge would have been futile. McCarthan never had a "genuine opportunity" to challenge his sentence. The Savings Clause opens the door to sentencing challenges, not just challenges to the execution of a sentence or when the sentencing court no longer exists. NACDL’s proposed test would not raise policy concerns.