LISA Newsletter for November 9, 2026 – ‘Our Bad,’ Government Tells SCOTUS While Trying to Scuttle Habeas Case
LISA publishes a free newsletter intended for inmate subscribers in the Federal system and interested readers in the outside world.
Edited by Thomas L Root, MA JD
Vol 12, No 43
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Government Tries to Torpedo SCOTUS Habeas Argument
Neither Fish Nor Fowl
BOP Reforms Issues FSA Habeas Resource
What The Blue Tsunami May Wash Ashore
You Gotta Say What You Mean to Beat 2255 Prejudice Assumption
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GOVERNMENT TRIES TO TORPEDO SCOTUS HABEAS ARGUMENT
During Supreme Court oral arguments in Maxwill v Dinis last week, the Solicitor General suggested for the first time that the petitioner – who had filed a 28 USC 2241 habeas corpus petition claiming the BOP had miscalculated his First Step Act credits – was going to halfway house in January anyway. That meant the case was about to be moot, the SG argued, making an opinion unnecessary.
The argument left Justices vexed that the government was only now arguing that the case, which was fully briefed and argued, should be dismissed as improvidently granted (known in SCOTUS-speak as a “DIG”).
Justice Ketanji Brown Jackson responded that the Supremes had already decided to address Maxwell’s issue when it granted certiorari five months ago. “What is concerning me about your DIG argument is that it sounds like we are relitigating certiorari,” Jackson said.
She suggested that the Court could issue a narrow ruling based on the specific circumstances of Maxwell’s case, rather than using “this case to define every circumstance in which habeas is appropriate.” That result would deprive other prisoners of badly needed high court guidance on the use of 2241 habeas.
The narrow question, Justice Jackson said, is whether a prisoner can bring a habeas claim that “he’s being unlawfully detained because he’s entitled to placement in a halfway house if his good-time credits had been calculated properly.”
Maxwell claims that habeas corpus is not limited to petitions seeking immediate release from all forms of custody, but can also be used when a prisoner is being deprived of less restrictive custody, such as moving from an institution to a halfway house or home confinement. Such prerelease custody is still BOP custody, but it’s much closer to freedom.
In Supreme Court briefing, the government agreed with Maxwell. Still, at last week’s oral argument it suddenly veered into its mootness claim, telling the justices that if they reverse and remand Maxwell with an order that the district court hear the habeas, it will likely become moot before it can be decided.
“So, even if it’s not moot here, it’s going to be moot down there [in the lower court] real quick, is what you’re telling us?” Justice Neil Gorsuch asked.
“Absolutely, yes,” the government replied.
The DOJ attorney acknowledged under questioning that the government had not raised that argument when the Supreme Court granted review of the case last spring.
“That was our bad,” Assistant to the Solicitor General Kevin J. Barber told the justices.
Justice Gorsuch later told Barber, “I haven’t heard ‘my bad’ before at the podium. Good on you.”
Maxwell v Dinis, Case No 25-5930 (argued Nov 2)
Law360Pulse, ‘Our Bad’: Feds’ First Step Act Argument Surprises Justices (Nov 2)
Courthouse News Service, Feds fumble push to squash prisoner transfer to halfway house at SCOTUS (Nov 2)
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NEITHER FISH NOR FOWL
Except in a few narrow circumstances, the Antiterrorism and Effective Death Penalty Act of 1996 bars prisoners from filing a 28 USC § 2255 petition for post-conviction relief when an earlier petition has already been denied. One of these exceptions is when such a claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The other is if newly-discovered facts underlying the claim show “by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.”
State prisoners may file a similar federal habeas corpus petition under 28 USC 2254. The standards for being allowed to file a second 2254 or 2255 petition are essentially the same.
Sometimes, however, the basis for the second habeas corpus is neither fish nor fowl.
In 2007, Dexter Johnson was sentenced to death for his role in a double murder. Five years before his conviction, the Supreme Court held in Atkins v Virginia that executing people with intellectual disabilities violates the 8th Amendment. At his trial, Dex’s expert concluded, however, that under the diagnostic standards at the time, the defendant’s IQ put him close to being intellectually disabled but not quite there.
After conviction, Dex filed a 28 USC 2254 habeas petition and argued that Atkins should extend to people with mental illness. He was denied.
But a few years later, the American Psychiatric Association, publisher of the Diagnostic and Statistical Manual of Mental Disorders, issued the 5th edition (known as DSM-5). The DSM is the bible of psychiatry, and its definitions of mental disorders – including intellectual disability – are for all intents and purposes determinative in the legal world.
Under the old DSM-4 standard, Dex fell a little to the smart side of the IQ level that marked intellectual disability. However, DSM-5 lowered the standard accepted by psychiatric professionals. Under the DSM-5 standard, Dex was intellectually disabled, meaning that executing him would be unconstitutional.
The problem is that a changed medical standard is neither a new rule of constitutional law nor a new fact relating to Dex. DSM-5 is not a legal decision, and Dex’s IQ remains what it was when he committed the crime. The issue, then, is whether the new standard qualifies Dex to file a second 2254.
When Dex filed the second 2254, the district court held that the claim was previously unavailable. The 5th Circuit agreed. Texas came to the Supreme Court.
Last week, the Supreme Court heard oral arguments.
Justice Elena Kagan suggested that the DSM-5 effectively created “a kind of Atkins I and an Atkins II” – first, a rule barring the execution of people with intellectual disabilities, followed by a “substantive standard” defining what it means to be intellectually disabled. She described the Atkins standard as akin to a rule with a “big gap in it” where “the DSM comes and plugs it in, and it becomes part of the legal standard.”
Justice Clarence Thomas asked whether, under Dex’s argument that a change in the DSM changed the Atkins holding, “Does Atkins ever stop being a new rule?” Schepers responded that Atkins “remains new now.”
Writing in SCOTUSBlog, Nora Collins said, “No justice appeared to take up Johnson’s request in his brief” that the Court DIG the case. A DIG would make the 5th Circuit decision in Dex’s favor final.
Guerrero v Johnson, Case No 25-1003 (argued Nov 6)
SCOTUSBlog, Justices consider when a constitutional rule is “previously unavailable” to prisoner (Nov 6)
Washington Examiner, Supreme Court grapples with allowing death row inmate’s second bid to avoid execution (Nov 4)
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BOP REFORMS ISSUES FSA HABEAS RESOURCE
Nonprofit BOP Reform has rolled out a tracker listing time-credit and prerelease-placement rulings, organized by district and circuit, with links to the rulings. It appears to be an excellent resource. Your people can find it at
https://bopreform.org/first-step-act-habeas-tracker-by-district/
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WHAT THE BLUE TSUNAMI MAY WASH ASHORE
Unless you were living under a rock last week, you noted the unprecedented midterm election results that flipped both the House and Senate, putting Democrats in control.
The “Blue Tsunami” will likely mean more prominent debates on criminal justice issues over the next two years. Both the Senate and House Judiciary Committees will have new leadership. In the House, Rep. Jamie Raskin (D-MD) is likely to replace the do-nothing Rep. Jim Jordan (R-OH), whose committee produced little criminal justice legislation while focusing on punishing Trump’s enemies.
In the Senate, Sen Sheldon Whitehouse (D-RI) is in line to replace Chairman Chuck Grassley (R-IA), a staunch Trump supporter but a forward thinker on criminal justice reform who co-sponsored the First Step Act and several other criminal justice measures that have not made it to a vote.
Whitehouse is likely to support legislation authorizing more lawsuits against federal law enforcement agencies for abuses by officers and legislation reining in the Bureau of Prisons. This year, four House Democrats demanded that the BOP address the agency’s “persistent, unsafe conditions” and “pervasive shortage of critical staff,” driven partly by corrections officers quitting in favor of higher-paying jobs at Immigration and Customs Enforcement.
The Democrats’ BOP focus followed a ProPublica investigation finding that BOP workers were being lured away by the $50,000 starting bonus and higher pay at ICE.
The new Speaker of the House will likely be Hakeem Jeffries (D-NY), one of the principal backers of the FSA in the House in 2018.
Writing in his Sentencing Law and Policy blog last week, Ohio State University law professor Doug Berman said, “I am hopeful (though not really optimistic) that any number of “small” sentencing reforms could provide the basis for bipartisan legislation in the next two years. In particular, I like to imagine reform bills which have previously gotten broad bipartisan support in the recent past — such as the EQUAL Act which would fully eliminate the crack/powder sentencing disparity in federal law and the proposal to prohibit the use of acquitted conduct in federal sentencing — could and should be able to garner broad support in the next Congress.”
Criminal Justice Journalists, Will Democratic Victories Change Criminal Justice Policy? (Nov 4)
NPR, Hakeem Jeffries is poised to become the first Black Speaker of the House (Nov 4)
EQUAL Act (118th Cong, S 1062)
Prohibiting Punishment of Acquitted Conduct Act (119th Cong, S 3483)
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YOU GOTTA SAY WHAT YOU MEAN TO BEAT 2255 PREJUDICE ASSUMPTION
The 7th Circuit last week found that Bing Cherry’s defense attorney erred by not raising an error in finding the drug defendant eligible for a higher mandatory minimum sentence due to a prior drug case that should not have been counted as a controlled substance offense.
In most cases, a defendant who establishes that the district judge mistakenly started from an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome. And where the error has the judge starting from higher minimum and maximum statutory penalties, counsel’s failure to object is clearly prejudicial. Statutory minimums and maximums have an obvious anchoring effect on the judge’s determination of a reasonable sentence because they define the range within which the judge may impose a sentence.
But here, the government argued that Bing’s sentence fell within his Guidelines range even after the decrease in his statutory minimum, so no harm occurred. In the government’s view, 18 USC 3553(a) sentencing factors — particularly Bing’s lengthy criminal record — drove the judge’s decision to impose a 240-month sentence.
The 7th disagreed. “When the judge expressly states that he ‘would have imposed the same sentence’ regardless of any potential error in the Guidelines calculation,” the Circuit wrote, “there is no reason to vacate the defendant’s sentence and remand for resentencing. Here, however, it’s not clear that the judge would have imposed the same 20-year sentence had he known the correct sentencing ranges. He certainly didn’t say as much. It’s true, as the government argues, that the judge emphasized Cherry’s criminal history… But [a] vague reference to Cherry’s criminal record does not confirm that the judge thought the 20-year sentence was appropriate ‘irrespective of’ the 841(b)(1)(B) enhancement.”
Besides, the 7th said, “trial counsel’s failure to object to the… enhancement prejudiced Cherry in at least one way—namely, in the imposition of an 8-year term of supervised release. This concession is appropriate. The record gives us no clue as to what the judge might have done had he known that Cherry was subject to a 4-year minimum rather than an 8-year minimum term of supervised release.”
Cherry v US, Case No 21-2231, 2026 USApp LEXIS 34037 (7th Cir. Nov. 5, 2026)
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