Berry v. United States

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

Berry v. United States

Brief Details
Key Topics in the Brief

Briefs

Prior Decision

Decision below 2026 WL 706333 (11th Cir. Feb. 18, 2026)

Argument(s)

A certificate of appealability should issue when a habeas petitioner raises a legal issue resolved against him by binding circuit precedent but in his favor by another circuit. Such disagreement establishes that the issue is debatable among reasonable jurists. Granting a certificate preserves meaningful appellate review, facilitates appointment of counsel, and allows counsel to test and distinguish precedent, preserve constitutional issues for en banc review, and develop suitable vehicles for Supreme Court review. Categorically denying certificates in these circumstances entrenches circuit precedent, obstructs reconsideration of conflicting legal rules, and undermines the Supreme Court’s role in ensuring uniform application of federal habeas law. The restrictive approach also creates an asymmetry because the government may appeal adverse habeas decisions without obtaining a certificate. Courts retain tools to resolve appeals controlled by precedent without foreclosing appellate review at the threshold. The Court should grant certiorari.

Author(s)

Daniel E. Jones, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC; Jeffery T. Green, NACDL, Washington, DC; Adeel M. Bashir, NACDL, Tampa, FL

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