Notable SCOTUS summary reversal on plain error review and brief statement on successive federal 2255 review

This mornings order list from the US Supreme Court has a brief summary reversal and an even briefer statement respecting the denial of certiorari.  The per curiam decision summary in Davis v. United States, No. 19–5421 (S. Ct. March 23, 2020) (available here), is a swift smack-down of the Fifth Circuit that substantively concludes this way:

In this Court, Davis challenges the Fifth Circuit’s outlier practice of refusing to review certain unpreserved factual arguments for plain error. We agree with Davis, and we vacate the judgment of the Fifth Circuit.

Rule 52(b) states in full: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”  The text of Rule 52(b) does not immunize factual errors from plain-error review.  Our cases likewise do not purport to shield any category of errors from plain-error review.  See generally Rosales-Mireles v. United States, 585 U. S. ___ (2018); United States v. Olano, 507 U. S. 725 (1993).  Put simply, there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.

In Avery v. United States, No. 19–633, Justice Kavanaugh issued this statement respecting the denial of certiorari, which wraps this way:

The text of that second-or-successive statute covers only applications filed by state prisoners under § 2254.  Yet six Courts of Appeals have interpreted the statute to cover applications filed by state prisoners under §2254 and by federal prisoners under § 2255, even though the text of the law refers only to § 2254....

After Avery’s case was decided, the Sixth Circuit recently rejected the other Circuits’ interpretation of the second-or-successive statute and held that the statute covers only applications filed by state prisoners under § 2254. Williams v. United States, 927 F. 3d 427 (2019).

Importantly, the United States now agrees with the Sixth Circuit that “Section 2244(b)(1) does not apply to Section 2255 motions” and that the contrary view is “inconsistent with the text of Section 2244.”  Brief in Opposition 10, 13.  In other words, the Government now disagrees with the rulings of the six Courts of Appeals that had previously decided the issue in the Government’s favor.

In a future case, I would grant certiorari to resolve the circuit split on this question of federal law.