IN THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
STEVE L. WRIGHT, JR.,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 13-1638
GOVERNMENT’S SUPPLEMENTAL RESPONSE TO
APPLICATION TO FILE A SUCCESSIVE § 2255 MOTION
The United States of America, by and through its undersigned
attorneys, respectfully submits the following supplemental response to
petitioner Steve L. Wright, Jr.’s application for leave to file a successive
motion under 28 U.S.C. § 2255. To the extent that this pleading is in conflict
with the initial response filed by the Government, the position taken in this
supplemental response should be relied upon rather than any contrary position
advanced in the Government’s initial response.
Wright makes two claims in the pleading this Court construed as
Wright’s petition for leave to file a successive § 2255 motion, that: (1) the
decision in Miller v. Alabama, 567 U.S. ––, 132 S.Ct. 2455 (2012) is
retroactive, and mandates the setting aside of both of Wright’s sentences of
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life imprisonment; and (2) the decision in Graham v. Florida, 560 U.S. 48
(2010), mandates resentencing because Wright’s sentence of two life terms
plus 110 years (consecutive) allows Wright no opportunity for any possibility
of release.
As to Wright’s first claim regarding the retroactivity of the Miller
decision, the Government in its initial response argued that this Court should
deny Wright’s claims because the Miller decision has not been made
retroactive by the Supreme Court. (Gov. Resp. 8.) However, that argument
was incorrect as it relates to Count Seven (the murder of Michael Birks, a
potential federal witness to the crimes charged in Counts Five and Six, in
violation of 18 U.S.C. § 1512(a)(1)(C), and 18 U.S.C. § 2), because that
murder occurred while Wright was a federal juvenile as he had not yet turned
18 years of age. As to Wright’s sentence under Count Seven, and consistent
with the position taken by the Department of Justice on this issue, the
Government should have conceded in its initial response that Miller is
retroactively applicable to cases on collateral review and may be asserted in a
successive motion seeking resentencing under § 2255.
The Government
conceded this issue in its brief filed in United States v. Johnson, 720 F.3d
720, 721 (8th Cir. 2013).
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Accordingly, and only with respect to Wright’s sentence under Count
Seven, the Government now concedes that Miller is retroactively applicable,
and asks this Court to remand the case to the district court with instructions to
determine whether Miller error was made under Count Seven, and if Wright is
entitled to any relief.1
Count Seven is the only count subject to a Miller retroactivity review
because it is the only count that charges conduct which occurred while Wright
was a federal juvenile (age 17) and which required a mandatory life sentence.
He was sentenced to life imprisonment on that count, in accordance with 18
U.S.C. §§ 1512(a)(1)(C) and 1111, which mandated a sentence of life.
Wright’s life sentence imposed for the conspiracy in Count One was imposed
for a count that included adult misconduct (including yet another murder),.
Accordingly, there is no basis for disturbing the sentence on Count One.
(Wright’s adult misconduct resulted in a sentence of: life (Count One), plus
120 months consecutive on Count Four (use of a firearm during and in
relation to a drug offense causing the death of Hector Santos), plus 300
months consecutive on Count Eleven (the Clark murder, which Wright
committed as an adult), plus another 300 months consecutive on Count
1
Although, as Wright’s attorney notes in his motion, some of the other
counts involved conduct that Wright committed as a juvenile, that fact is
essentially irrelevant, since only Count Seven carried a mandatory life
sentence.
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Fifteen, plus a consecutive 480 months on Counts Twelve and Fourteen
(which ran concurrent to each other).)
The Government, therefore, concedes as to Count Seven only, that
Wright has made a prima facie showing under 28 U.S.C. §§ 2255(h) and
2244(b)(3(C), that his motion involves a “new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2255(h)(2). Wright’s petition seeking
authorization to file a successive § 2255 motion, therefore, should be granted,
but only as to Count Seven.
Respectfully submitted,
TAMMY DICKINSON
United States Attorney
By
/s/ Charles E. Ambrose, Jr.
CHARLES E. AMBROSE, JR.
Assistant United States Attorney
Charles Evans Whittaker Courthouse
400 East 9th Street, Room 5510
Kansas City, Missouri 64106
Telephone: (816) 426-3122
Attorneys for Respondent
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CERTIFICATE OF SERVICE
I hereby certify that on September 5, 2013, the foregoing was electronically
filed with the Clerk of the Court for the United States Court of Appeals for
the Eighth Circuit by using the CM/ECF system. A copy will be served on
participants in the case by the CM/ECF system or by U.S. Mail, postage
prepaid.
Elizabeth Unger Carlyle
P.O. Box 30418
Kansas City, Missouri 64112
Steve L. Wright, Jr.
Reg. No. 16507-045
U.S. Penitentiary
P.O. Box 33
Terre Haute, Indiana 47808-0033
/s/ Charles E. Ambrose, Jr.
Charles E. Ambrose, Jr.
Assistant United States Attorney
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