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.

Letter to the Judicial Conference Committee on Practice & Procedure regarding proposed rule changes to the Federal Rules of Criminal Procedure and Rules Governing 2255 Proceedings.

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.

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.