No.

13-7283 ________________________________________________________________ ________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES _______________

JOSEPH STORY, PETITIONER v. UNITED STATES OF AMERICA _______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _______________

BRIEF FOR THE UNITED STATES _______________

DONALD B. VERRILLI, JR. Solicitor General Counsel of Record MYTHILI RAMAN Acting Assistant Attorney General MICHAEL A. ROTKER Attorney Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

________________________________________________________________ ________________________________________________________________

QUESTION PRESENTED Whether petitioner is entitled to a certificate of

appealability to appeal the denial of his motion to vacate his mandatory intervening 20-year sentence under 28 U.S.C. 2255, when

precedent

establishes

that

petitioners

mandatory

sentence was imposed in error.

(I)

IN THE SUPREME COURT OF THE UNITED STATES _______________

No. 13-7283 JOSEPH STORY, PETITIONER v. UNITED STATES OF AMERICA _______________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _______________

BRIEF FOR THE UNITED STATES _______________ OPINIONS BELOW The opinion of the court of appeals denying a certificate of appealability of the (Pet. court App. of 2-6) is in not published. Prior are

opinions

appeals

petitioners

case

reported at 125 Fed. Appx. 646 and 503 F.3d 436. JURISDICTION The judgment of the court of appeals was entered on March 13, 2013. A petition for rehearing was denied on August 6, 2013 The petition for a writ of certiorari was filed The jurisdiction of this Court is invoked

(Pet. App. 1).

on November 4, 2013.

under 28 U.S.C. 1254(1).

2 STATEMENT In 2002, following a jury trial in the United States

District Court for the Eastern District of Tennessee, petitioner was convicted of conspiracy to distribute and possession with intent to distribute 50 grams or more of cocaine base, in

violation of 21 U.S.C. 846 and 841(a)(1), and distribution of cocaine base, in violation of 21 U.S.C. 841(a)(1). He was

sentenced to 360 months of imprisonment.

The court of appeals

vacated petitioners sentence and remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). Appx. 646 (6th Cir. 2005). On remand, the 125 Fed court

district

resentenced petitioner to 300 months of imprisonment.

The court

of appeals vacated the sentence and remanded for resentencing. 503 F.3d 436 (6th Cir. 2007). The district court then

resentenced petitioner to 240 months of imprisonment. In 2009, petitioner filed a motion to vacate his sentence under 28 U.S.C. for 2255. to In amend 2011 his and 2012, petitioner motion. filed The

motions

leave

Section

2255

district court denied petitioners Section 2255 motion as well as his motions to amend, and it also denied petitioners Pet. App.

application for a certificate of appealability (COA). 7-26. The court of appeals denied a COA as well. 1.

Id. at 2-6.

From February 2001 to February 2002, petitioner and two

other individuals participated in a drug trafficking conspiracy.

3 In March 2002, petitioner was indicted by a federal grand jury in the Eastern District of Tennessee and charged with conspiracy to distribute and possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. 846 and 841(a)(1) (Count 1), and distribution of cocaine base, in

violation of 21 U.S.C. 841(a)(1) (Counts 6 and 7). Under the law then in effect,1 a first-time offender

convicted of an offense involving the charged drug quantities faced a mandatory minimum sentence of ten years of imprisonment and a maximum sentence of life. (2000). See 21 U.S.C. 841(b)(1)(A)(iii)

If the offenders criminal history included a prior

conviction for a felony drug offense, then the offender was subject to a mandatory minimum sentence of 20 years of

imprisonment and a maximum sentence of life.

Ibid.

A felony

drug offense is defined as a federal, state, or foreign drug offense that is punishable by imprisonment for more than one year. based 21 U.S.C. 802(44). statutory A court may not impose a recidivismunless the government files an

enhancement

In 2010, the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372, raised the threshold quantity of cocaine base triggering a ten-year minimum sentence from 50 to 280 grams. Petitioner, however, was sentenced years before the FSAs effective date, and the amended drug quantities apply only to post-FSA sentencings. See Dorsey v. United States, 132 S. Ct. 2321 (2012). Petitioner does not rely on the FSA here.

4 information that notifies the defendant of the prior convictions triggering the enhancement. 21 U.S.C. 851(a)(1).

Before trial, the government filed a notice under Section 851 indicating its intent to seek an enhanced sentence against petitioner in the event of a conviction. The notice stated that

petitioner had been convicted in 1996 in Alamance County, North Carolina, Superior Court, of felony possession with intent to sell and deliver cocaine. Information (Jan. 24, 2003));

Presentence Investigation Report (PSR) 47. respect to the faced North a Carolina

The judgment with reflects ten months that of

conviction of

petitioner

maximum Gen.

sentence Ann.

imprisonment. 1996).

N.C.

Stat.

15A-1340.17(c)

(West

North Carolina employs a determinate sentencing scheme in which each defendants his or sentencing his range is determined and States by any v. At

considering mitigating

offense,

prior

convictions, See United

aggravating

factors.

Simmons, 649 F.3d 237, 239-240 (4th Cir. 2011) (en banc).

the time of petitioners conviction, the Sixth Circuit had not addressed the question of how to determine whether a prior North Carolina conviction is for a crime punishable by a prison term exceeding one year -- i.e., is a felony drug offense under Section 802(44). The Fourth Circuit, however, had held that

courts were to determine whether a North Carolina conviction

5 satisfied defendant, Section 802(44) one by with ascertaining the worst whether any

including

possible

criminal

history, could have received a sentence exceeding one year for that offense. United States v. Harp, 406 F.3d 242, 246 (4th

Cir.) (describing the Fourth Circuits approach to evaluating North Carolina convictions, as set forth in United States v. Jones, 195 F.3d 205 (4th Cir. 1999), cert. denied, 529 U.S. 1029 (2000)), cert. denied, 546 U.S. 919 (2005). set forth in Jones and Harp, Under the analysis North Carolina

petitioners

conviction qualified as a felony drug offense, even though petitioner himself was not exposed to a maximum sentence

exceeding one year of imprisonment. 2. Following a jury trial, petitioner was convicted on The probation officer

Counts 1 and 7, and acquitted on Count 6.

determined that the quantity of drugs for which petitioner was responsible, PSR 15, coupled with petitioners prior felony drug offense conviction, subjected petitioner to a mandatory

minimum sentence of 20 years of imprisonment and a maximum of life on Count 1, PSR 78, and a maximum sentence of 30 years of imprisonment, with no mandatory minimum, on Count 7, ibid. sentencing, the district court imposed concurrent At

30-year

sentences, to be followed by ten years of supervised release. The court of appeals affirmed petitioners convictions, but

vacated his sentence and remanded for resentencing in light of

6 United States v. Booker, 543 U.S. 220 (2005). 646 (6th Cir. 2005). On remand, the district court resentenced petitioner to 300 months of imprisonment. 503 F.3d 436, 438 (6th Cir. 2007). The 125 Fed. Appx.

court of appeals vacated that sentence on the ground that the district court had misstated the Guidelines range. Id. at 441.

In March 2008, the district court resentenced petitioner to concurrent 20-year sentences. 2:02-cr-00022-3 Docket entry No. Petitioner did not

(Docket No.) 170 (E.D. Tenn. Mar. 24, 2008). appeal. 3. a.

On March 23, 2009, petitioner timely filed a motion

to vacate his sentence under 28 U.S.C. 2255(a), alleging that his trial counsel was ineffective at his second resentencing hearing by failing to request a sentence below 20 years, and at trial by failing Pet. to move to suppress The certain government inculpatory filed an

statements.

App.

40-43.

opposition to petitioners motion, arguing that petitioner was not entitled to relief on the merits. (June 26, 2009). On October 17, 2011, while petitioners motion was pending, petitioner filed a motion for leave to amend his Section 2255 motion, seeking to raise a claim that his 1996 North Carolina drug conviction was not a felony drug offense triggering the 20-year mandatory minimum. Pet. App. 33-35. Petitioner Docket No. 181, at 5-11

7 observed that, in United States v. Pruitt, 545 F.3d 416, 424-426 (2008), the Sixth Circuit had held that, in determining whether a prior North Carolina conviction qualifies as a felony drug offense, courts must look at the maximum sentence faced by the particular defendant, rather than the hypothetical defendant

with the worst criminal history. Petitioner subsequently

Pet. App. 34. an additional motion for

filed

leave to amend his Section 2255 motion, in which he noted that the Fourth Circuit, sitting en banc, had recently overruled Harp and Jones and agreed with Pruitt on the test for determining whether a prior North Carolina drug conviction is a felony drug offense for purposes of Section 802(44). at 245-247. See Simmons, 649 F.3d

The Simmons court explained that in Carachuri-

Rosendo v. Holder, 130 S. Ct. 2577, 2586-2588 (2010), this Court held that whether a second or subsequent state conviction for possession of a controlled substance qualifies as a conviction for an aggravated felony under the immigration laws must be determined based on the record of that conviction, considering the defendants own criminal history. that that Carachuri-Rosendos whether a prior be reasoning The Fourth Circuit held Harps a holding drug

undermined constituted

conviction determined

felony the

offense

should

by

considering

maximum

sentence that could have been imposed for that offense on a hypothetical defendant with the worst possible criminal history.

8 See Simmons, 649 F.3d at 245-247. The Simmons court therefore

held that a defendant has not been convicted of a felony drug offense when, based on his criminal history and mitigating or aggravating factors, the maximum sentence he faced was less than one year of imprisonment. b. On June 12, Id. at 241-245. 2012, the district court issued a

memorandum opinion and order denying the claims in petitioners original Section 2255 motion on the merits (Pet. App. 16-26) and denying petitioners motions for leave to amend on the ground that they were untimely (id. at 7-16). The court did not

request the views of the government on petitioners motions to amend, and the government did not file any response to those motions. With respect to the motions to amend, the district court, citing Simmons, observed that it appears that petitioner would have no qualifying predicate offenses for purposes of Section 841(b)(1)(A) were he to be sentenced today. Pet. App. 8 n.2.

The court concluded, however, that petitioners motions to amend were untimely under Section 2255(f). The court explained that

the motions were filed more than one year after the judgment had become final, see 28 U.S.C. 2255(f)(1), and the claim did not relate[] back to the claims in his timely filed Section 2255 motion. Pet. App. 14-16; see Mayle v. Felix, 545 U.S. 644, 659

(2005) (relation back depends on a common core of operative

9 facts between the original and later-asserted claims). court also held that petitioners sentencing claim was The not

timely under Section 2255(f)(3), which provides that a prisoner may file a motion within one year of the date that this Court issues a decision recognizing a new right that is retroactively applicable to cases on collateral review. The district court declined to Pet. App. 11. a certificate of

issue

appealability (COA) on the ground that reasonable jurists would not find the courts disposition of the claims debatable. Pet.

App. 26; see 28 U.S.C. 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). 4. Petitioner requested a COA from the court of appeals

with respect to his claims that Pruitt and Simmons established that he should not have been subject to a 20-year mandatory minimum and that trial counsel was ineffective for failing to raise that claim at sentencing.2 Pet. App. 2-3. The court of

appeals declined to issue a COA, concluding that jurists of reason would not debate the district courts procedural ruling that petitioners motions to amend his Section 2255 motion were

The court of appeals appears to have interpreted petitioners motion for a COA as raising only the ineffectiveassistance claim. Pet. App. 2-3. Liberally construed, however, petitioners pro se request for a COA raised both claims. See Pet. Application Request for a Certificate of Appealability 2, No. 12-5847 (Aug. 27, 2012); Pet. 5-6.

10 time-barred. petitioner was Id. not at 3-5. The to court further held of that the

entitled

equitable

tolling

limitations period because he failed to show an extraordinary circumstance prevented timely filing of his amended claim. at 4; see Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). court also rejected petitioners argument that his Id. The

actual[]

innocen[ce] of the 20-year mandatory minimum sentence provided an independent basis for equitably tolling the statute of

limitations.

Pet. App. 5. DISCUSSION

Petitioner contends (Pet. 7-16) that the lower courts erred in declining to issue a COA on his Simmons/Pruitt sentencing claim and his claim that trial counsel was ineffective for

failing to raise that claim. appeals denial of a COA is

Plenary review of the court of not warranted. The government

agrees with petitioner, however, that the lower courts erred in declining to issue petitioner a COA to allow him to appeal his Simmons/Pruitt claim that the 20-year mandatory minimum was

imposed in error.

With respect to that claim, the Court should

grant the petition, vacate the court of appeals judgment, and remand the case for further this proceedings brief. consistent court of with the

position

expressed

in

The

appeals

correctly declined to issue a COA with respect to petitioners

11 ineffective-assistance claim, and the petition should be denied with respect to that claim. 1. A federal prisoner seeking to appeal the denial of a

motion to vacate his sentence under Section 2255 must obtain a COA. See 28 U.S.C. 2253(c)(1)(B). To obtain such a

certificate, the prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. 2253(c)(2).

Where, as here, a district court denies a claim raised in a Section 2255 motion on procedural grounds, the prisoner must make two threshold showings: [1] that jurists of reason would

find it debatable whether the [Section 2255 motion] states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Gonzalez v.

Thaler, 132 S. Ct. 641, 648 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 2. Petitioner can make a substantial showing that he was

subjected to an erroneous mandatory minimum sentence and the resulting mandatory 20-year term of imprisonment violates his constitutional right to due process. He can also show that

reasonable jurists would debate the correctness of the lower courts sua sponte dismissal of petitioners sentencing claim on timeliness grounds.

12 a. Petitioner received a mandatory sentence of 20 years of

imprisonment under 21 U.S.C. 841(b)(1)(A)(iii) because he had a prior conviction drug that the -sentencing i.e., a court classified as a

felony

offense

drug-related

offense

punishable by imprisonment for more than one year, 21 U.S.C. 802(44). When the sentence was imposed, the Sixth Circuit had

not addressed how to determine whether a prior North Carolina conviction qualified as a felony drug offense when a

hypothetical worst offender could have received a sentence in excess of one year for the offense. But petitioners sentence See United

was consistent with the Fourth Circuits approach.

States v. Harp, 406 F.3d 242, 246 (4th Cir.), cert. denied, 546 U.S. 919 (2005); United States v. Jones, 195 F.3d 205 (4th Cir. 1999), cert. denied, 529 U.S. 1029 (2000). In 2008, however, the Sixth Circuit disagreed with the

Fourth Circuits approach in Harp and held that a defendants sentencing exposure in a prior conviction must be judged based on the record of that conviction, considering the defendants own criminal history. (2008). United States v. Pruitt, 545 F.3d 416

Under Pruitt, if the particular defendant did not face

a sentence of more than one year based on his criminal history, his conviction does not qualify as a felony drug offense for purposes of Section 802(44). United States v. Simmons, 649 Id. at 422-425. F.3d 237 (4th Thereafter, in Cir. 2011) (en

13 banc), the Fourth Circuit overruled Harp and adopted Pruitts approach. Pruitt and Simmons arose on direct review. The Sixth

Circuit has not had occasion to decide whether Pruitts rule applies retroactively to cases on collateral review. Circuit has held, however, that Simmons is The Fourth

retroactively

applicable on collateral review. F.3d 141, 145-146 (2013). Simmons announced that a new

Miller v. United States, 735

As the Fourth Circuit explained, substantive retroactively Carolina rule because of the statutory decision do not Id.

construction clarified

applies

that

certain

North

convictions

qualify as predicate felonies for purposes of federal law. at 146. can be

As a result, Simmons narrowed the class of persons who subject to the sentencing enhancements set forth in

Section 841(b)(1)(A)(iii). 348, 353 (2004)

See Schriro v. Summerlin, 542 U.S. rules include those that

(substantive

prohibit[] the imposition of punishment on a particular class of persons). That reasoning would apply equally to Pruitt, Cf. United States v.

which announced the same rule as Simmons.

Jones, 689 F.3d 621, 625-626 (6th Cir. 2012) (holding that Begay v. United States, 553 U.S. 137 (2008), which held that a state conviction for drunk driving is not a violent felony for

purposes of the recidivist sentencing enhancement Armed Career

14 Criminals Act, announced a substantive rule of statutory

construction that is retroactive to cases on collateral review). Thus, under the approach adopted in Pruitt and Simmons, petitioner is correct that he did not have a prior conviction for a felony drug offense and that he should not have been subject to a 20-year mandatory minimum sentence under Section 841(b)(1)(A)(iii). b. sentence The is a erroneous imposition error of a mandatory to minimum support

constitutional

sufficient

issuance of a COA.

See 28 U.S.C. 2253(c)(2).

A defendant

convicted of a drug offense under Section 841 involving the quantities of drugs at issue here, with no qualifying prior felony drug offense[s], ordinarily would have faced a

statutory sentencing range of ten years to life. 841(b)(1)(A)(iii) (2000).

21 U.S.C.

Petitioner, however, was subject to a

mandatory minimum sentence of 20 years of imprisonment based on the sentencing courts conclusion that petitioner had a prior felony drug offense. That conclusion is erroneous under

Pruitt, and the error is a substantive one that may be raised on collateral review. The error also produced a due process

violation by depriving the sentencing court of discretion to impose a lower all sentence of the (between ten years and life) after

considering

mitigating

and

aggravating

factors

surrounding the offense.

Cf. Gardner v. Florida, 430 U.S. 349,

15 358 (1977) (plurality opinion) ([T]he sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause.). This Court has held that a similar error -- the erroneous imposition of a mandatory minimum sentence under state law and the resulting deprivation of sentencing discretion -- violated due process. In Hicks v. Oklahoma, 447 U.S. 343 (1980), Hicks

received a mandatory 40-year sentence that was later shown to be erroneous under state law. Id. at 345-346. The state court

nevertheless affirmed Hicks 40-year sentence on the ground that it was within the range of punishment that could have been imposed in any event. Id. at 345. This Court reversed,

holding that the erroneous mandatory minimum violated Hicks due process rights because Hicks ha[d] a substantial and legitimate expectation that he [would] be deprived of his liberty only to the extent determined by the jury in the exercise of its

statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State.3 reasonable Id. at 346 (citation omitted). jurists considering petitioners In light of Hicks, mandatory minimum

Although the sentencer that was improperly deprived of all discretion in Hicks was the jury, Hicks is not, however, limited to imposition of sentences by juries. Prater v. Maggio, 686 F.2d 346, 350 n.8 (5th Cir. 1982).

16 20-year sentence would find it at least debatable that the

sentencing courts erroneous deprivation of all discretion to impose a lesser sentence violated due process. c. Petitioner can also show that jurists of reason would

find it debatable whether the lower courts were correct in [their] procedural ruling[s]. The district court Gonzalez, 132 S. Ct. at 648. that petitioners sentencing

held

challenge was time-barred because he sought to add the claim well after the expiration of the one-year statute of limitations provided in Section 2255. that defense sua sponte, Pet. App. 3, 7-16. without inviting The court raised the government to

respond to petitioners sentencing claim, which he raised in motions to amend his Section 2255 motion after the government had filed its response to the claims asserted in petitioners initial Section 2255 motion. the district courts And the court of appeals affirmed ruling without requesting a

procedural

response from the government. Although Section 2255s statute of limitations is a nonjurisdictional affirmative defense that the government bears the burden of asserting, the courts had discretion to raise the issue on their own motion. See Day v. McDonough, 547 U.S. 198,

205 (2006) (statute of limitations); see also Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (non-retroactivity); Trest v. Cain, 522 U.S. 87, 89 (1997) (procedural default). Reasonable jurists

17 could conclude, however, that the lower courts abused their

discretion by raising the defense without first affording the government an opportunity to opine on the propriety of doing so. As this Court recently explained, a federal court does not have carte blanche to depart from the principle of party presentation basic to our adversary system, and a court may choose to raise the statute of limitations defense sua sponte only where the State does not strategically withh[o]ld the defense or cho[o]se to relinquish it, and where the petitioner is accorded a fair opportunity to present his position. Ct. 1826, 1833-1834 (2012). Wood v. Milyard, 132 S.

Accordingly, when the government

deliberately and consciously declines to assert a statute of limitations defense, [i]t would be an abuse of discretion * * * for a court to address the defense and thereby override a States deliberate waiver. Ibid.

The lower courts thus erred by not affording the government the opportunity to express its views on the propriety of raising the statute of limitations defense. Had the courts done so, the

government would have had an opportunity to decide whether the interests of justice counseled in favor of waiving the defense and permitting the lower courts to reach the merits of

petitioners claim.

See, e.g., Mungro v. United States, Nos.

5:11cv141RLV & 5:04cr18RLVCH1, 2013 WL 6800822, at *6-*7 & n.3 (W.D.N.C. Dec. 23, 2013) (granting Section 2255 motion to

18 vacate the prisoners mandatory life sentence on Simmons

grounds, and noting that the government had waived reliance on the statute-of-limitations defense); Sturvidant v. United

States, Nos. 3:12cv66FDW & 3:09cr39FDW6, 2013 WL 6669025, at *1, *3 (W.D.N.C. Dec. 18, 2013) (granting Simmons relief after government waiver declined of the to enforce to the defendants attack pleahis

agreement sentence).

right

collaterally

Because petitioner can demonstrate that jurists of reason would find it debatable whether he has asserted a valid claim of the denial of a constitutional right and whether the district courts procedural ruling was correct, Gonzalez, 132 S. Ct. at 648, the court of appeals erred in denying a COA. This Court

should grant the petition, vacate the judgment below, and remand this case for further proceedings. 3. Petitioner also contends (Pet. 9-10) that the lower

courts should have granted a COA on his claim that trial counsel was ineffective 851 for failing on the to challenge that the governments North

Section

notice

ground

petitioners

Carolina conviction was not a felony drug offense. cannot show that reasonable jurists would find

Petitioner that claim not

debatable.

Petitioners

trial

counsels

performance

was

deficient because it did not fall below an objective standard

19 of reasonableness. (1984). In 2003, when the government filed its Section 851 notice and petitioner was sentenced, Fourth Circuit precedent held that petitioners North Carolina conviction qualified as a felony drug offense under Section 802(44) because a defendant with the worst criminal history could have received a sentence exceeding one year. The governments notification that it intended to Strickland v. Washington, 466 U.S. 668, 687

rely on the North Carolina conviction as a felony drug offense supporting an enhanced sentence was therefore consistent with the decision of the only appellate court to have considered the issue at the time. The Sixth Circuit had not addressed the

issue and did not establish that petitioners North Carolina conviction was not a felony drug offense until several years later. Because there is no general duty on the part of defense

counsel to anticipate changes in the law, Thompson v. Warden, 598 F.3d 281, 288 (6th Cir. 2010) (quoting Green v. Johnson, 116 F.3d 1115, 1125 (5th Cir. 1997)), petitioners counsel did not perform deficiently in 2003 by failing to anticipate Pruitt and challenge the use of petitioners North Carolina conviction to enhance his sentence. See New v. United States, 652 F.3d 949,

952-953 (8th Cir. 2011) (holding that counsel was not deficient for failing to raise an argument not directly supported by any controlling legal authority or clearly foreshadowed by

20 controlling authority, and citing similar cases); Fields v.

United States, 201 F.3d 1025, 1026-1028 (8th Cir.) (counsel was not ineffective for failing to anticipate a change in the law that, at the time, had been rejected in another circuit), cert. denied, 531 U.S. 885 (2000); see also Alcorn v. Smith, 781 F.2d 58, 62 (6th Cir. 1986). Petitioner is therefore not entitled to

a COA on his ineffective-assistance claim, and plenary review of that claim is unwarranted. CONCLUSION With respect to petitioners Simmons/Pruitt claim of

sentencing error, the petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated, and the case remanded for further proceedings in light of the

position expressed in this brief. petition should be denied. Respectfully submitted.

In all other respects, the

DONALD B. VERRILLI, JR. Solicitor General MYTHILI RAMAN Acting Assistant Attorney General MICHAEL A. ROTKER Attorney JANUARY 2014