Government moves to amend the opinion I called “buck-naked wrong”

Last month, I blogged here about the Third Circuit panel opinion in US v. Reyes. I tactfully observed that the opinion mistakenly applied the higher retroactivity standards for successor habeas petitions to a first habeas petition:

This is buck-naked wrong. The decision to make Alleyne retroactive rests exclusively with the Supreme Court only as to successors, per 28 USC 2244(b)(2)(A), a provision that does not apply to non-successor collateral cases like Reyes. Simpson and Redd, like Winkelman, are successor cases, not collateral cases. The court will have to grant rehearing in this case to correct this error.

The panel’s error favored the Government, but, to its great credit, the Government has filed a motion to amend the panel opinion to correct the error. The motion is signed by AUSAs Robert Zauzmer and Bernadette McKeon. After quoting the same paragraph I quoting in my post, the Government’s motion continued:

This paragraph is unnecessary to the Court’s decision, and is inconsistent
with this Court’s precedent. In United States v. Swinton, 333 F.3d 481, 485-87
(3d Cir. 2003), the Court held that, in addressing a first petition for relief under
28 U.S.C. § 2255 (as in this case), a district court or Court of Appeals has
authority to determine whether a new Supreme Court decision is retroactively
applicable on collateral review. In contrast, the Swinton Court explained, only
the Supreme Court may apply a new rule retroactively when addressing a second
or successive petition under Section 2255.

The decisions cited in the paragraph at issue in the opinion – United States
v. Winkelman, 746 F.3d 134 (3d Cir. 2014); Simpson v. United States, 721 F.3d 875 (7th Cir. 2013); and United States v. Redd, 735 F.3d 88, 91 (2d Cir.2013) – all
involved second or successive 2255 petitions, and correctly observed that in that
context only the Supreme Court may declare a new rule retroactively applicable.
In contrast, the present case, like Swinton, concerns an initial petition.

The Government’s motion was filed June 30 and it remains pending.

Common-sense reasonableness is smart appellate lawyering. Motions like this are part of why Zauzmer is one of the Third Circuit’s top advocates. At oral argument in another recent case, Chief Judge McKee went out of his way to praise Zauzmer for a concession, observing, “lesser advocates would not have done this.” Judges notice.