Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner-Appellant.

Argument: NACDL’s amicus brief argues that under the savings clause of 28 U.S.C. § 2255(e), a prisoner may seek habeas corpus relief through 28 U.S.C. § 2241 under limited circumstances: when the § 2255 remedy is “inadequate or ineffective to test the legality of [the prisoner’s] detention.”  28 U.S.C. § 2255(e).  For 20 years, the Fifth Circuit has recognized that the § 2255 remedy is “inadequate or ineffective” if a petitioner cannot seek relief despite a retroactively applicable Supreme Court decision establishing that the petitioner may have been convicted of a nonexistent crime.  Although that test leaves the door closed on some actual-innocence claims that should be recognized, it is generally consistent with the savings-clause tests applied in nearly every other federal court of appeals.  Most importantly, that test confirms that the savings clause offers more than a hollow process providing no practical opportunity to end unlawful imprisonment.  The Tenth and Eleventh Circuits, by contrast, have held that the savings clause applies only if the procedure afforded by § 2255 was formally unavailable.  According to those courts, so long as there was some theoretical chance to assert a claim under § 2255—even if the claim was futile or frivolous under existing precedent—the remedy was adequate and effective.  The Fifth Circuit should not modify or overrule its savings-clause jurisprudence to align itself with the Tenth and Eleventh Circuits.  The test applied in those circuits contravenes the text of the savings clause and congressional intent, poses constitutional concerns, and would force petitioners and their counsel to disregard binding precedent, court rules, and ethical obligations that forbid arguments that would be frivolous under settled law.  Moreover, application of the formal-process test would undermine public confidence in the justice system’s treatment of prisoners who contend that retroactive changes in the law mean they are actually innocent.

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

Argument: Courts are improperly positioned to assess whether the decision to go to trial is rational. Rejecting a plea bargain is rational because it might lead to more favorable outcomes. The decision to invoke his right to trial grants a noncitizen defendant the chance to avoid deportation, and that chance in itself makes declining a plea bargain rational. "Funny things happen" at trial. Presuming that defense counsel will use strategy as a guise for incompetence offends the ethical standards defense attorneys are bound to uphold.

Brief of Amicus curiae of the National Association of Criminal Defense Lawyers, Legal Ethics Professors and Legal Ethics Practitioners In Support of Respondent.

Argument: Advisory Ethics Opinion E-435 does not conflict with controlling federal law. Federal statutes, regulations, and court rules recognize the lawyer conduct ethics rules of this state. Opinion E-435 correctly concludes that waiver of ineffective assistance claims at a guilty plea create a conflict of interest for the defense lawyer that the prosecutor cannot impose on a pleading defendant. Conclusion: “Kentucky Ethics Op. E-435 is a correct statement of the controlling ethical principles and does not conflict with any law. The governing of lawyer conduct is completely within the power of the State, and federal prosecutors are bound by the State’s ethics rules under 28 U.S.C. §530b. This ethics opinion governs the conduct of prosecutors and criminal defense attorneys who practice in the state courts of Kentucky as well in the federal courts in Kentucky. Therefore, the U.S. Attorney’s brief of United States in Support of Motion for Review of Ethics Opinion should be rejected and the ethics opinion as written should be affirmed.”

Brief of FAMM and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: The question that has divided the circuits is of critical importance to thousands of federal prisoners. The decision below gravely misreads the federal post-conviction relief statute. The Eighth Circuit’s rule contradicts the plain text of § 2244. The Eighth Circuit’s rule leads to arbitrary results. The severity of the consequences to petitioner and many others similarly situated – and the disutility of their sentences to society – underline the urgency of granting review.

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

Argument: Plea agreement waivers prohibiting a defendant from seeking post-conviction relief from deprivation of the right to effective assistance of counsel should never be enforced. A defense attorney has an inherent and unwaivable conflict. Criminal defendants are entitled to conflict-free counsel. Prosecutors also violate rules of professional conduct when they insist on IAC waivers in pleas agreements. The majority of ethics authorities to consider this issue have ruled that defense attorneys are prohibited from advising clients to accept IAC waivers. Congress has required federal prosecutors to adhere to state ethics rules.

Amicus Brief of the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant and Reversal

Argument: The Supreme Court has long held that guilty pleas are not absolute, and plea agreement appeal waivers do not foreclose a claim of actual innocence. Courtade makes a claim of actual innocence that lies beyond the scope of the plea agreement appeal waiver. Prudential consideration support permitting a collateral attack in these circumstances despite the appeal waiver.