Jenner & Block Supreme Court and Appellate Clinic—Significant Achievements for 2019-20

The Jenner & Block Supreme Court and Appellate Clinic represented clients in a number of significant cases in the U.S. Supreme Court and U.S. Court of Appeals for the Seventh Circuit this year.

U.S. Supreme Court Cases

The Clinic was co-counsel for Respondent Patrick Dwayne Murphy in Sharp v. Murphy, Case No. 17-1107. The question presented was whether Congress had disestablished the reservation of the Muscogee (Creek) Nation in Oklahoma for purposes of federal criminal law. After briefing and oral argument during the Court’s 2018 Term, the Court held the case for re-argument during its 2019 Term. The Court then took another case (McGirt v. Oklahoma, Case No. 18-9526) raising the same issue during the 2019 Term. In a 5-4 decision in that case, the Court agreed with the position taken by the Clinic in Murphy, holding that these lands remained an Indian reservation for purposes of federal criminal law. As Justice Gorsuch’s majority opinion explained, “Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking.”  The Court then ruled in favor of the Clinic’s client, Mr. Murphy, in the Murphy case.

The Clinic also worked on the merits-stage briefing on behalf of the Respondent in Espinoza v. Montana Department of Revenue, Case No. 18-1195. At issue in the case was a Montana state statute providing that taxpayers would receive dollar-for-dollar tax credits for donations to organizations that would in turn disburse those donations to private schools for purposes of paying student tuition. The Montana Supreme Court invalidated the statute under the Montana Constitution’s bar on aid to religious schools. The question presented in the case was whether the invalidation of Montana’s statute violated the Free Exercise Clause, Equal Protection Clause, or Establishment Clause. In a 5-4 decision, the Supreme Court held that the application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause.

The Clinic co-authored an amicus brief on behalf of Amnesty International in support of the Respondent in United States v. Sineneng-Smith, Case No. 19-67. At issue in the case was whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional. A central premise of the government’s argument was that the provision cannot and will not be used to target views and speech protected by the First Amendment for criminal investigation and prosecution. The Clinic’s amicus brief explained that this argument is wrong, as the “facts on the ground” show that the provision is used to interfere with and chill a substantial amount of protected speech along the southern border. The Supreme Court did not reach the constitutional question in the case.  Instead, in a unanimous opinion, the Court vacated the appellate court decision and remanded the case, holding that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion.

In addition, the Clinic filed two petitions for certiorari, both raising important questions about the scope of post-conviction review and relief in federal court. The first petition addressed the availability of post-conviction review and relief for a new constitutional claim. In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that imposing an increased sentence under the residual clause of the Armed Career Criminal Act (“ACCA”) violated the Due Process Clause’s prohibition on vague laws. Before this Court struck down the mandatory U.S. Sentencing Guidelines in 2005, thousands of Americans received mandatory increased sentences under the identically-worded residual clause in the Guidelines’ career-offender provision, whose text was imported from ACCA’s residual clause.  The question presented in the Clinic’s petition was whether a motion for post-conviction relief under 28 U.S.C. § 2255 filed within one year of Johnson can assert a timely, valid claim that the residual clause of the mandatory Guidelines is unconstitutionally vague. The case was Hodges v. United States, Case No. 19-1133.

The second petition addresses the availability of post-conviction review and relief when a change in circuit law makes clear that a petitioner has been wrongly subjected to an enhanced mandatory minimum sentence. Under 28 U.S.C. § 2255, a federal prisoner cannot bring a second or successive claim for post-conviction relief in many circumstances. But § 2255(e) includes a savings clause that allows a prisoner whose claim is otherwise barred to petition for a writ of habeas corpus if the § 2255 remedy is “inadequate or ineffective” to test the legality of his detention. The federal circuit courts are split on whether a change in circuit law can support relief under the savings clause. The question presented in the case therefore is whether, notwithstanding the savings clause, an individual serving a wrongfully enhanced sentence is barred from obtaining relief, solely because the wrongfulness of the sentence was established retroactively by a court of appeals decision. The case is Hueso v. Barnhart, Case No. 19-1365.  The petition remains pending.

All of the Clinic’s students worked on these Supreme Court cases—from researching legal issues, to assessing potential arguments, to drafting and editing briefs.

Seventh Circuit Cases

The Clinic also was counsel of record in two Seventh Circuit appeals, with Clinic students briefing and arguing both appeals.

In the first appeal, the Clinic’s clients had both pleaded guilty to violating 18 U.S.C. § 924(c)(3)(B), which made it illegal to use a firearm in the commission of a “crime of violence.” Years later, a district court granted their motions for post-conviction relief, holding that this statute of conviction was void for vagueness. The district vacated their convictions and sentences. The Clinic represented the clients in the government’s appeal. While the appeal was pending, the Supreme Court held that 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague. With that issue resolved, the government argued that it should be permitted to reinstate charges it had dismissed with prejudice as part of the plea agreement or seek resentencing on those charges; the Clinic argued that the government was foreclosed from seeking this relief. The Seventh Circuit panel dismissed the government’s appeal for lack of jurisdiction. The clients’ consolidated appeals were Bufkin v. United States and Toney v. United States, Case Nos. 17-3306 and 17-3307.

 The second appeal challenged a dismissal with prejudice for want of prosecution. The Clinic represented Appellant Aishef Shaffer, who had proceeded pro se in the district court. After Mr. Shaffer had actively litigated his case for more than a year, the defendants filed a motion for an order to show cause why the case shouldn’t be dismissed, saying that Mr. Shaffer had failed to provide notice of his new mailing address. The district court didn’t issue an order to show cause or other warning. Instead, about six months later, the district court dismissed the case with prejudice for want of prosecution. When Mr. Shaffer learned of the dismissal, he filed a motion seeking reconsideration, explaining that he had mailed notice of his change of address and hadn’t been aware of an issue with his case. On appeal, the Clinic argued that the district court erred by prematurely dismissing the case with prejudice, and then compounded that error by denying the motion seeking reconsideration. The Seventh Circuit affirmed the district court, holding that the district court had not abused its discretion. The case was Shaffer v. Lashbrook, et al., Case No. 19-1372.

The Clinic’s students researched and wrote all of the briefing in these Seventh Circuit appeals. Clinic student Andy Osborne, ’20, argued the consolidated Bufkin and Toney appeals before the Seventh Circuit. Clinic student Addison Bennett, ’20, argued the Shaffer appeal before the Seventh Circuit.