Pro Se Filer Snags SCOTUS Spot, With Help From Firm

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By Kimberly Robinson

Jan. 19 — A rare thing happened at the U.S. Supreme Court Jan. 8—the high court agreed to review a pro se cert petition without “relisting” it (Welch v. United States, 84 U.S.L.W. 3382, U.S., No. 15-6418, review granted, 1/8/16).

That makes the grant doubly rare.

Recently, an overwhelming majority of Supreme Court grants are either granted out of the court's “long conference”—occurring each September, just before the start of the term—or after at least one relist—that is, after considering the petition in at least two private conferences where the justices decided what cases to take up.

Moreover, it is “fairly unusual for the Court to grant a pro se petition,” Supreme Court practitioner John P. Elwood, of Vinson & Elkins LLP, Washington, told Bloomberg BNA.

It only happens “once every other Term or one every third Term on average,” Elwood, an expert on Supreme Court cert grants, estimated.

Gregory Welch bucked both of those trends when the high court agreed to take up his case.

But Welch won't have to go it alone anymore—Jenner & Block LLP attorneys had already joined his team before the Supreme Court agreed to hear his case.

Inconsistent Application

Welch's petition involves the effect of a case the high court decided last term, Johnson v. United States, 83 U.S.L.W. 4576, 2105 BL 204915 (U.S. June 26, 2015) (83 U.S.L.W. 2001, 6/30/15).

In an 8-1 decision, the court in Johnson held that the Armed Career Criminal Act's “residual clause”—a catchall provision identifying the predicate offenses that can impose a mandatory minimum sentence of 15 years—was unconstitutionally vague.

Welch's petition asks if that decision applies retroactively to those already sentenced under the residual clause when Johnson was handed down.

After Johnson, it became clear that the way the decision was implemented by the lower courts would be important, Welch's recently acquired attorney Amir H. Ali, an associate at Jenner & Block, Washington, told Bloomberg BNA.

So Ali and his colleague, Lindsay C. Harrison, a partner at Jenner & Block, Washington, started to watch the issue as it progressed in the lower courts.

They noticed that the courts were applying Johnson inconsistently with regard to its retroactive application, Ali said.

Ali and Harrison filed two petitions with the Supreme Court on the issue—In re Sharp, review denied, 84 U.S.L.W. 3385 (U.S. Jan. 11, 2016) (No. 15-646) and In re Butler, dismissed, 84 U.S.L.W. 3344 (U.S. Dec. 15, 2015) (No. 15-578).

But they also came across Welch's petition.

Welch had represented himself pro se in the circuit court below—even asking the U.S. Court of Appeals for the Eleventh Circuit to hold his case while Johnson was being argued in the Supreme Court.

After the Eleventh Circuit refused to do so, the Supreme Court handed down their decision in Johnson, a potentially favorable opinion for Welch.

That's when Welch filed his Supreme Court cert. petition.

Unique Position

Ali and Harrison approached Welch shortly after, filing a reply and supplemental brief in the Supreme Court.

They said they will continue to represent him pro bono, but will continue to consult Welch throughout the litigation.

Harrison said that it is hugely helpful to have such a knowledgeable client. Welch clearly spends a lot of time researching the issues, Harrison said.

Ali noted that Welch is in a “unique” position.

There was a very narrow window where a prisoner could raise the issue in an “initial” habeas petition—rather than a subsequent one, Ali said.

That's probably why the court picked Welch's petition rather than the handful of other cases seeking to resolve this issue, Harrison said.

The other petitions were all requests for extraordinary relief, Harrison said, because they weren't made in an initial petition. Therefore, those cases potentially had “vehicle problems,” she said.

Welch's petition was the only “straight” petition that could resolve this important issue through the court's regular certiorari process, Harrison said.

If the court resolves the question in favor of Welch—saying that Johnson does apply retroactively—it is likely that Welch will have to be resentenced, Ali said.

If Johnson is retroactive, it will take Welch's eligible sentence from a minimum of 15 years to a maximum of 10, Ali said.

Urgent Matter

But Welch's grant is important to Supreme Court watchers too, in that it was just the fourth time the high court granted a case outside of the long conference without a relist this term.

The Supreme Court granted Hughes v. Talen Energy Marketing, LLC, review granted, 84 U.S.L.W. 3211 (U.S. Oct. 19, 2015) (No. 14-614), consolidated with CPV Md., LLC v. Talen Energy Marketing, LLC, review granted, 84 U.S.L.W. 3211 (U.S. Oct. 19, 2015) (No. 14-623), and United States v. Bryant, review granted, 84 U.S.L.W. 3336 (U.S. Dec. 14, 2015) (No. 15–420) all without a relist.

With time running out to get cases briefed and argued before the end of the term, the court subsequently granted three more cases without a relist on Jan. 19: Salman v. United States, U.S., No. 15-628, review granted, 1/19/16; United States v. Texas, U.S., No. 15-674, review granted, 1/19/16; and Mathis v. United States, U.S., No. 15-6092, review granted, 1/19/16.

On the question of why the court decided to grant Welch's case without a relist, Harrison said time was of the essence.

There is a statute of limitations issue here, she said. Under 28 U.S.C. §2255, a prisoner has one year from “the date on which the right asserted was initially recognized by the Supreme Court” to bring a petition.

That means in order to benefit from the Johnson decision, prisoners will have to file their petitions before the end of June.

The fact that the Supreme Court granted Welch's petition without the customary relist reflects that urgency, Harrison said.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com