________________________________________________________________ ________________________________________________________________

No. 13-6733

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IN THE SUPREME COURT OF THE UNITED STATES

_______________

MICHAEL SNIPES, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES

_______________ DONALD B. VERRILLI, JR. Solicitor General Counsel of Record MYTHILI RAMAN Acting Assistant Attorney General MICHAEL A. ROTKER Attorney Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

(I)

QUESTION PRESENTED

Whether the court of appeals erred in denying petitioner’s

application for a certificate of appealability to appeal the

district court’s denial of his motion to vacate his mandatory

life sentence under 28 U.S.C. 2255(a), when intervening

precedent establishes that petitioner’s mandatory life sentence

was imposed in error.

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 13-6733

MICHAEL SNIPES, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES

_______________

OPINIONS BELOW

The order of the court of appeals denying petitioner’s

application for a certificate of appealability (Pet. App. 22-24)

is unpublished and unreported. A prior unpublished opinion of

the court of appeals in petitioner’s case is reprinted in 236

Fed. Appx. 996.

JURISDICTION

The judgment of the court of appeals was entered on July 2,

2013. The petition for a writ of certiorari was filed on

September 30, 2013. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

2

STATEMENT

In 2003, following a guilty plea in the United States

District Court for the Eastern District of Tennessee, petitioner

was convicted of conspiracy to possess 50 grams or more of

cocaine base and 500 grams or more of cocaine with intent to

distribute them, in violation of 21 U.S.C. 846 and 841(a)(1).

He was sentenced to a mandatory term of life imprisonment. See

21 U.S.C. 841(b)(1)(A). The court of appeals affirmed. 236

Fed. Appx. 996 (6th Cir.), cert. denied, 552 U.S. 982 (2007).

In 2007, petitioner filed a motion to vacate his sentence

under 28 U.S.C. 2255(a). The district court sua sponte

dismissed four of the six claims for relief on procedural

grounds. Pet. App. 4. Petitioner appealed, and the court of

appeals dismissed the appeal. Petitioner then filed a motion to

supplement his Section 2255 motion to assert that intervening

precedent established that his mandatory life sentence had been

erroneously imposed. Id. at 14. The district court denied

petitioner’s Section 2255 motion and his motion to supplement,

and it also denied petitioner’s application for a certificate of

appealability (COA). Id. at 21. Petitioner sought a COA from

the court of appeals on the question whether his mandatory life

sentence was imposed in error. The court of appeals declined to

issue a COA. Id. at 22-24.

3

1. a. From 2001 to 2003, petitioner supplied large

quantities of crack and powder cocaine to various confederates

as part of a drug distribution operation in and around Johnson

City, Tennessee. Presentence Investigation Report (PSR) ¶ 6.

In September 2003, a federal grand jury indicted petitioner for

conspiracy to distribute and possess with intent to distribute

50 grams or more of cocaine base and 500 grams or more of

cocaine, in violation of 21 U.S.C. 846 and 841(a)(1).

Under the law then in effect,1 a first-time offender

convicted of an offense involving the charged drug quantities

faced a mandatory minimum sentence of ten years of imprisonment

and a maximum sentence of life. See 21 U.S.C. 841(b)(1)(A)(iii)

(2000). If the offender’s criminal history included “a prior

conviction for a felony drug offense,” then the offender was

subject to a mandatory minimum sentence of 20 years of

imprisonment and a maximum sentence of life. Ibid. And an

offender with “two or more prior convictions for a felony drug

offense [that] have become final” faced “a mandatory term of

life imprisonment without release.” Ibid. A “felony drug

1 In 2010, the Fair Sentencing Act of 2010 (FSA), Pub. L.

No. 111-220, 124 Stat. 2372, raised the threshold quantity of cocaine base triggering a ten-year minimum sentence from 50 to 280 grams. Petitioner, however, was sentenced years before the FSA’s effective date, and the amended drug quantities apply only to post-FSA sentencings. See Dorsey v. United States, 132 S. Ct. 2321 (2012). Petitioner does not rely on the FSA here.

4

offense” is defined as a federal, state, or foreign drug offense

“that is punishable by imprisonment for more than one year.” 21

U.S.C. 802(44). A court may not impose a recidivism-based

statutory enhancement unless the government files an information

that notifies the defendant of the prior convictions triggering

the enhancement. 21 U.S.C. 851(a)(1).

On December 22, 2003, the government filed a notice under

Section 851 indicating its intent to seek an enhanced sentence

in the event of a conviction. The notice alleged that

petitioner had two prior convictions for a “felony drug

offense”: (1) a September 2, 1997, North Carolina state court

conviction for possession with intent to sell and deliver

cocaine, and (2) a March 29, 1999, North Carolina state court

conviction for possession with intent to sell and deliver

marijuana. See 2:03-cr-70-1 Docket entry No. (Docket No.) 14

(Dec. 22, 2003) (Notice); see also PSR ¶¶ 38 (1997 conviction),

41 (1999 conviction).

North Carolina employs a determinate sentencing scheme in

which each defendant’s sentencing range is determined by

considering his offense, his prior convictions, and any

mitigating or aggravating factors. See United States v.

Simmons, 649 F.3d 237, 239-240 (4th Cir. 2011) (en banc). At

the time of petitioner’s conviction and sentencing, no binding

Sixth Circuit precedent established how to determine whether a

5

prior North Carolina conviction was “punishable” by more than

one year for purposes of Section 802(44). The Fourth Circuit

had held that courts were to determine whether a prior North

Carolina conviction “is for a crime punishable by a prison term

exceeding one year” -- i.e., is a “felony drug offense” under

Section 802(44) -- by ascertaining whether “any defendant,”

including one with the worst possible criminal history, could

have received a sentence exceeding one year for that offense.

United States v. Harp, 406 F.3d 242, 246 (4th Cir.) (describing

the Fourth Circuit’s approach to evaluating North Carolina

convictions, as set forth in United States v. Jones, 195 F.3d

205 (4th Cir. 1999), cert. denied, 529 U.S. 1029 (2000)), cert.

denied, 546 U.S. 919 (2005). Under that approach, petitioner’s

two North Carolina convictions, when combined with the quantity

of drugs at issue in this case, subjected him to a mandatory

minimum sentence of life imprisonment upon conviction. See 21

U.S.C. 841(b)(1)(A)(iii).

b. On January 26, 2004, petitioner agreed to plead guilty

to the charge pursuant to a written plea agreement. The

agreement included petitioner’s acknowledgement that he was

facing a “mandatory term of life imprisonment without release,”

Docket No. 18, at 2, as well as petitioner’s agreement to “waive

any rights he may have to file any post-conviction motions or

pleadings pursuant to Title 28, United States Code, Section

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2255,” id. at 9, other than a claim of ineffective assistance of

counsel or prosecutorial misconduct, ibid. In the “Agreed

Factual Basis” (Docket No. 19) that accompanied the plea

agreement, petitioner “stipulated * * * as being true and

correct” both the facts giving rise to the federal charges as

well as the fact that he had been convicted of the 1997 and 1999

North Carolina drug offenses identified in the Section 851

notice.

The district court accepted petitioner’s plea. Petitioner

filed two motions to withdraw the plea, but the district court

denied them. See Docket Nos. 27, 54.

c. The probation officer concluded that petitioner was

subject to a mandatory life sentence based upon the quantity of

drugs at issue (85 grams of crack cocaine and 5 kilograms of

cocaine, PSR ¶ 19), and his two prior qualifying drug

convictions, PSR ¶ 63. Petitioner filed no objections to the

PSR’s recommendations. The district court sentenced petitioner

to the statutorily mandated sentence of life imprisonment.

Docket No. 57 (Judgment).

2. The court of appeals affirmed. 236 Fed. Appx. 996 (6th

Cir.), cert. denied, 552 U.S. 982 (2007). The court rejected

petitioner’s contentions that the government had breached the

plea agreement, that the district court erred in denying his

7

motion to withdraw his plea, and that his sentence was imposed

in violation of his Fifth and Sixth Amendment rights.

3. a. On October 7, 2008, petitioner filed a motion to

vacate his sentence under 28 U.S.C. 2255(a), alleging that (1)

his plea was not made knowingly, voluntarily and intelligently;

(2) trial counsel was ineffective; (3) the government breached

the plea agreement; (4) his sentence was unconstitutionally

enhanced based on facts not found by the jury; (5) his sentence

was unreasonable; and (6) the district judge had a conflict of

interest. Docket No. 73 (Section 2255 motion).

The district court sua sponte dismissed the latter four

claims on the ground that they had been raised and litigated on

direct review. Pet. App. 22; see generally Reed v. Farley, 512

U.S. 339, 358 (1994) (Scalia, J., concurring in part and

concurring in the judgment) (“[C]laims will ordinarily not be

entertained under [Section] 2255 that have already been rejected

on direct review.”). Petitioner appealed that ruling. In 2009,

the court of appeals dismissed the appeal for lack of

jurisdiction. Pet. App. 22-23.

In November 2008, after the district court had dismissed

four of petitioner’s claims, the government filed a response to

petitioner’s remaining two claims. The government argued that

the claims were procedurally barred because petitioner had

raised them on direct appeal and because he had waived his right

8

to file a Section 2255 motion in the plea agreement. The

government also argued that petitioner’s claims lacked merit.

Docket No. 75, at 14-21 (Nov. 6, 2008).

b. In February 2012, petitioner filed a pro se motion to

supplement his Section 2255 motion in which he alleged, for the

first time, that neither of his two prior convictions qualified

as “felony drug offenses” for purposes of the sentencing

enhancement in Section 841(b)(1)(A)(iii). Petitioner relied on

the Fourth Circuit’s intervening decision in United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Docket No. 84

(Feb. 2, 2012). Simmons overruled Harp and reversed Fourth

Circuit law on the test for determining whether a prior North

Carolina drug conviction constitutes a conviction for a “felony

drug offense,” 21 U.S.C. 841(b)(1)(A), i.e., an offense that is

“punishable by imprisonment for more than one year,” 21 U.S.C.

802(44). The Simmons court explained that in Carachuri-Rosendo

v. Holder, 130 S. Ct. 2577, 2586-2588 (2010), this Court held

that whether a second or subsequent state conviction for

possession of a controlled substance qualifies as a “conviction”

for an “aggravated felony” under the immigration laws must be

determined based on the record of that conviction, considering

the defendant’s own criminal history. The Fourth Circuit held

that Carachuri-Rosendo’s reasoning undermined Harp’s holding

that whether a prior conviction constituted a “felony drug

9

offense” should be determined by considering the maximum

sentence that could have been imposed for that offense on a

hypothetical defendant with the worst possible criminal history.

See Simmons, 649 F.3d at 245-247. Overruling Harp, the Simmons

court held that a defendant has not been convicted of a “felony

drug offense” when, based on his criminal history and mitigating

or aggravating factors, the maximum sentence he faced was less

than one year of imprisonment. Id. at 241-245.

Although petitioner relied only on Simmons, in 2008 the

Sixth Circuit had held, consistent with Simmons, that “under the

North Carolina structured [sentencing] scheme,” a defendant’s

“prior record level dictates his sentencing exposure and,

consequently, it must be considered in determining whether [the

defendant’s] convictions were ‘punishable’ for a term exceeding

one year.” United States v. Pruitt, 545 F.3d 416, 423 (6th Cir.

2008); see id. at 424 (rejecting Harp’s reliance on the

hypothetical defendant with “the worst possible criminal

history”).

c. In March 2012, the district court denied petitioner’s

Section 2255 motion and the motion to supplement. The court

denied the claims raised in petitioner’s original Section 2255

motion based on the relitigation bar and petitioner’s

collateral-review waiver in his plea agreement. Pet. App. 4-13.

10

The district court denied petitioner’s motion to supplement

his Section 2255 motion on three procedural grounds, which the

court raised sua sponte, without inviting the government to file

a response to the motion to supplement or to the court’s

proposed disposition. First, the court concluded the

petitioner’s Simmons claim was untimely because petitioner did

not assert it until 2012, several years after the one-year

statute of limitations applicable to Section 2255 motions had

expired, 28 U.S.C. 2255(f), and the claim did not “relate[]

back” to the claims in his timely filed Section 2255 motion.

Pet. App. 15-16; see Mayle v. Felix, 545 U.S. 644, 659 (2005)

(later-asserted claim must share “a common core of operative

facts” with the claims in an original Section 2255 motion).

Second, the court held that even if petitioner’s Simmons claims

were timely, the proposed amendment would have been “futile”

because petitioner’s Simmons claim was “barred by the

retroactivity doctrine announced in Teague v. Lane, 489 U.S. 288

(1989).” Pet. App. 16. Third, the court concluded that

petitioner had procedurally defaulted his sentencing claim by

failing to raise it on direct appeal. Id. at 17-19 & n.3.

The district court declined to issue a certificate of

appealability (COA) on any of petitioner’s claims on the ground

that reasonable jurists would not find the court’s assessment of

the merits or the procedural bars debatable. Pet. App. 19-21;

11

Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court

observed, however, that petitioner’s Simmons claim was “quite

troubling” because “it appears that, under a proper

interpretation of North Carolina’s structured sentencing law,

[petitioner] would not have had qualifying predicate offenses to

impose an enhanced sentence of life.” Pet. App. 20. The court

explained that according to the PSR, the maximum sentences that

petitioner faced for his North Carolina convictions were both

under one year of imprisonment. Id. at 14 n.2. As a result,

the court stated, “[t]he equities seemingly fall on

[petitioner’s] side.” Id. at 20. Nonetheless, because the

court believed that it had “applied the procedural rules

correctly,” it declined to issue a COA on petitioner’s Simmons

claim. Id. at 21.

4. Petitioner requested a COA from the court of appeals

“with respect to a single issue,” namely, whether his mandatory

life sentence “should be vacated because his prior drug

convictions no longer qualify as predicate felony drug offenses

according to [Simmons].” Pet. App. 23. The court of appeals

declined to issue a COA. Ibid.

The court of appeals reasoned that, when a Section 2255

motion is denied on procedural grounds, a COA should not issue

unless the prisoner can show that reasonable jurists could

debate the correctness of the procedural rulings and the

12

existence of a valid constitutional claim. Pet. App. 23 (citing

Slack, 529 U.S. at 493). Without addressing whether petitioner

had shown that he had a debatable constitutional claim, the

court of appeals concluded that a COA was not warranted because

petitioner had expressly waived his right to file a collateral

attack on his conviction and sentence. Id. at 23-24.

DISCUSSION

Petitioner contends (Pet. 5-13) that the court of appeals

erred in denying a COA on his argument that his mandatory

sentence of life imprisonment was erroneously imposed. Plenary

review of the court of appeals’ denial of a COA is not

warranted. In the view of the United States, however, the court

of appeals erred in denying petitioner’s application for a COA.

Accordingly, the petition should be granted, the judgment

vacated, and the case remanded for further proceedings

consistent with the position expressed in this brief.

1. A federal prisoner seeking to appeal the denial of a

motion to vacate his sentence under Section 2255 must obtain a

COA. See 28 U.S.C. 2253(c)(1)(B). To obtain such a

certificate, the prisoner must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. 2253(c)(2).

Where, as here, a district court denies a claim raised in a

Section 2255 motion on procedural grounds, the prisoner must

make two threshold showings: “[1] that jurists of reason would

13

find it debatable whether the [Section 2255 motion] states a

valid claim of the denial of a constitutional right and [2] that

jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Gonzalez v.

Thaler, 132 S. Ct. 641, 648 (2012) (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)). The lower courts erred in concluding

that petitioner could not meet this standard.

2. Petitioner can make a substantial showing that he was

subjected to an erroneous mandatory minimum sentence and the

resulting mandatory life term of imprisonment violates his

constitutional right to due process.

a. Petitioner was sentenced to a mandatory minimum

sentence of life imprisonment based on a statutory recidivist

enhancement that applies only when an individual has two prior

convictions for “felony drug offense[s]” -- i.e., drug-related

offenses that were “punishable by imprisonment for more than one

year,” 21 U.S.C. 802(44). 21 U.S.C. 841(b)(1)(A)(iii). At the

time petitioner was sentenced, the Fourth Circuit had held that

a prior North Carolina state court drug conviction qualified as

a “felony drug offense” under Section 802(44) if a hypothetical

worst offender could have received a sentence of more than one

year in prison. See United States v. Harp, 406 F.3d 242, 232,

246 (4th Cir.), cert. denied, 546 U.S. 919 (2005); see also

United States v. Jones, 195 F.3d 205 (4th Cir. 1999), cert.

14

denied, 529 U.S. 1029 (2000). Under the approach employed in

Harp, petitioner’s two prior North Carolina convictions

qualified as “felony drug offense[s]” under Section 802(44).

In 2008, however, the Sixth Circuit held in United States

v. Pruitt, 545 F.3d 416 (2008), that in order to determine

whether a prior North Carolina drug offense was “punishable” by

a term of imprisonment exceeding one year, the court must

determine the defendant’s sentencing exposure in light of the

defendant’s own criminal history, rather than calculating the

maximum exposure using a hypothetical defendant with the worst

possible criminal history. Id. at 423-424. A few years later,

the Fourth Circuit reached the same conclusion in United States

v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Simmons

overruled Harp and held that if, under North Carolina’s

sentencing scheme, the defendant did not face a sentence of more

than one year based on his criminal history, his conviction does

not qualify as a “felony drug offense” as defined in 21 U.S.C.

802(44). See generally Burgess v. United States, 553 U.S. 124,

130 (2008) (“[T]he term ‘felony’ is commonly defined to mean a

crime punishable by imprisonment for more than one year.”).

Pruitt and Simmons arose on direct review. The Sixth

Circuit has not had occasion to decide whether Pruitt’s rule

applies retroactively to cases on collateral review. The Fourth

Circuit has held, however, that Simmons is retroactively

15

applicable on collateral review. Miller v. United States, 735

F.3d 141, 145-146 (2013). As the Fourth Circuit explained,

Simmons announced a new substantive rule of statutory

construction that applies retroactively because the decision

clarified that certain North Carolina “convictions do not

qualify as predicate felonies for purposes of federal law.”2 Id.

at 146. As a result, Simmons narrowed the class of persons who

can be subject to the sentencing enhancements set forth in

Section 841(b)(1)(A)(iii). See Schriro v. Summerlin, 542 U.S.

348, 353 (2004) (substantive rules include those that

“prohibit[] the imposition of punishment on a particular class

of persons”). That reasoning would apply equally to Pruitt,

which announced the same rule as Simmons. Cf. United States v.

Jones, 689 F.3d 621, 625-626 (6th Cir. 2012) (holding that Begay

v. United States, 553 U.S. 137 (2008), which held that a state

conviction for drunk driving is not a “violent felony” for

purposes of the recidivist sentencing enhancement Armed Career

Criminals Act, announced a substantive rule of statutory

construction that is retroactive to cases on collateral review).

2 Petitioner incorrectly states that Miller held that

Simmons involved a “new rule of constitutional law that applies retroactively on collateral review.” Pet. 5 (emphasis added). Simmons’s holding rested on statutory construction, not constitutional interpretation.

16

Under the analysis set forth in Pruitt and Simmons,

petitioner’s prior North Carolina convictions were not properly

classified as felonies because his criminal record did not

subject him to a sentence of at least one year in prison.

Petitioner is therefore correct that he did not have two prior

convictions for a “felony drug offense” and that he should not

have been subject to a mandatory life sentence under Section

841(b)(1)(A)(iii).

b. The erroneous imposition of a mandatory minimum

sentence is a constitutional error sufficient to support

issuance of a COA. See 28 U.S.C. 2253(c)(2). A defendant

convicted of a drug offense under Section 841 involving the

quantities of cocaine at issue here, with no qualifying prior

“felony drug offense[s],” ordinarily would have faced a

statutory sentencing range of ten years to life. 21 U.S.C.

841(b)(1)(A)(iii) (2000). Petitioner, however, was subject to a

mandatory minimum sentence of life imprisonment based on the

sentencing court’s conclusion that petitioner had two prior

“felony drug offense[s].” That conclusion is erroneous under

Pruitt, and the error is a substantive one that may be raised on

collateral review. The error also produced a due process

violation by depriving the sentencing court of discretion to

impose a lower sentence (between ten years and life) after

17

considering all of the mitigating and aggravating factors

surrounding the offense.

This Court has held that a similar error -- the erroneous

imposition of a mandatory minimum sentence under state law and

the resulting deprivation of sentencing discretion -- violated

due process. In Hicks v. Oklahoma, 447 U.S. 343 (1980), Hicks

received a mandatory 40-year sentence that was later shown to be

erroneous under state law. Id. at 345-346. The state court

nevertheless affirmed Hicks’ 40-year sentence on the ground that

it was “within the range of punishment that could have been

imposed in any event.” Id. at 345. This Court reversed,

holding that the erroneous mandatory minimum violated Hicks’ due

process rights because Hicks “ha[d] a substantial and legitimate

expectation that he [would] be deprived of his liberty only to

the extent determined by the jury in the exercise of its

statutory discretion, and that liberty interest is one that the

Fourteenth Amendment preserves against arbitrary deprivation by

the State.”3 Id. at 346 (citation omitted). In light of Hicks,

reasonable jurists considering petitioner’s mandatory minimum

life sentence would find it at least debatable that the

3 Although the sentencer that was improperly deprived of all

discretion in Hicks was the jury, Hicks “is not, however, limited to imposition of sentences by juries.” Prater v. Maggio, 686 F.2d 346, 350 n.8 (5th Cir. 1982).

18

sentencing court’s erroneous deprivation of all discretion to

impose a lesser sentence violated due process.

3. In this case, the lower courts did not consider whether

petitioner had made a substantial showing that his life sentence

violates due process because they denied petitioner a COA on

procedural grounds. Petitioner can show, however, “that jurists

of reason would find it debatable whether” the lower courts were

“correct in [their] procedural ruling[s].” Gonzalez, 132 S. Ct.

at 648.

The district court held that petitioner’s sentencing

challenge was time-barred, Teague-barred, and procedurally

defaulted, and the court of appeals held that petitioner’s claim

was encompassed within his plea-agreement waiver of his right to

collaterally attack his sentence. Pet. App. 16-19, 23-24. Both

courts raised these defenses sua sponte, without inviting the

government to respond to petitioner’s Simmons claim, which he

raised in a motion to supplement after the government had filed

its response to the claims asserted in petitioner’s initial

Section 2255 motion. The lower courts had discretion to raise

these defenses on their own motion. See Day v. McDonough, 547

U.S. 198, 205-206 (2006) (holding that courts may raise AEDPA

statute of limitations sua sponte; also noting that courts of

appeals have held courts may raise procedural default sua

sponte); Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (non-

19

retroactivity); see also Jones, 689 F.3d at 624 n.1 (plea

agreement waivers).

Reasonable jurists could conclude, however, that the lower

courts abused their discretion by not affording the parties an

opportunity to comment on the propriety of raising these

defenses. As this Court recently explained with respect to the

statute of limitations defense, “a federal court does not have

carte blanche to depart from the principle of party presentation

basic to our adversary system,” and a court may choose to raise

the limitations defense sua sponte only where “the State does

not ‘strategically withh[o]ld the defense or cho[o]se to

relinquish it,’ and where the petitioner is accorded a fair

opportunity to present his position.” Wood v. Milyard, 132 S.

Ct. 1826, 1833-1834 (2012). The Court thus recognized that the

government may, in an appropriate case, deliberately and

consciously decline to assert non-jurisdictional defenses.4 Id.

at 1834. When the government does so, “[i]t would be an abuse

of discretion * * * for a court” to address the defense and

thereby “override a State’s deliberate waiver.” Ibid.

4 For the reasons discussed above, the district court erred

in holding that the rule announced in Pruitt and Simmons is not retroactive. See pp. 14-15, supra; Pet. App. 16. But even if the rule were not retroactive, the government would be entitled to waive the affirmative defense of non-retroactivity in appropriate cases. See Danforth v. Minnesota, 552 U.S. 264, 289 (2008) (citing Collins v. Youngblood, 497 U.S. 37, 41 (1990)).

20

The lower courts thus erred by not affording the parties

the opportunity to express their views on the propriety of

raising the defenses on which the courts relied, all of which

were non-jurisdictional and therefore waivable. Had the courts

done so, the government would have had an opportunity to decide

whether the interests of justice counseled in favor of waiving

the defenses and permitting the lower courts to reach the merits

of petitioner’s claim. See, e.g., Mungro v. United States, Nos.

5:11–cv–141–RLV & 5:04–cr–18–RLV–CH–1, 2013 WL 6800822, at *6-*7

& n.3 (W.D.N.C. Dec. 23, 2013) (granting Section 2255 motion to

vacate the prisoner’s mandatory life sentence on Simmons

grounds, and noting that the government had waived “reliance on

the statute-of-limitations defense”); Sturvidant v. United

States, Nos. 3:12–cv–66–FDW & 3:09–cr–39–FDW–6, 2013 WL 6669025,

at *1, *3 (W.D.N.C. Dec. 18, 2013) (granting Simmons relief

after government “declined to enforce” the defendant’s plea-

agreement waiver of the right to collaterally attack his

sentence).

Because petitioner can demonstrate that “jurists of reason

would find it debatable whether” he has asserted a valid claim

of the denial of a constitutional right and whether the district

court’s procedural rulings were correct, Gonzalez, 132 S. Ct. at

648, the court of appeals erred in denying a COA.

21

CONCLUSION

The petition for a writ of certiorari should be granted,

the judgment of the court of appeals vacated, and the case

remanded to the court of appeals for further proceedings in

light of the position expressed in this brief.

Respectfully submitted. DONALD B. VERRILLI, JR. Solicitor General MYTHILI RAMAN Acting Assistant Attorney General MICHAEL A. ROTKER Attorney JANUARY 2014