ROBINSON V. WARDEN

Filing 22

ORDER denying 15 Motion to Dismiss and Response to Robinson's 28 U.S.C. § 2241 Petition. The Court will allow the respondent, however, to file an amended response to Mr. Robinson's amended petition. The respondent shall have 60 days from the entry of this Order to file an amended response. Mr. Robinson shall have 30 days from the docketing of the amended response to file a reply. Signed by Judge James Patrick Hanlon on 1/10/2022. (TPS)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JULIUS OMAR ROBINSON,

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Petitioner,
v.
WARDEN, et al.
Respondents.

No. 2:20-cv-00640-JPH-MG

ORDER DENYING MOTION TO DISMISS AND
ALLOWING OPPORTUNITY TO FILE AMENDED RESPONSE
Julius Omar Robinson is a federal prisoner who has been convicted of two
murders and sentenced to death. He has filed an amended petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 raising a number of claims based
on the Constitution and international law.
The respondent filed a combined motion to dismiss and response to the
amended petition. Dkt. 15. In it, the respondent argues that most of
Mr. Robinson's claims are barred by 28 U.S.C. § 2255(e), commonly referred to
as the "savings clause," and that the remaining claim is without merit.
Respondent does not, however, address Mr. Robinson's argument that the
savings clause does not apply on a claim-by-claim basis. Dkt. 4 at 161 (arguing
that § 2255(e) "refers to 'an application for writ of habeas corpus' not individual
claims within an application for writ of habeas corpus"). This is a critical issue
because if the Court were to conclude that Mr. Robinson is correct, it would then
consider all the claims raised in Mr. Robinson's amended petition.

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Mr. Robinson argues that the respondent waived any objection to his
"whole-application" reading of § 2255(e) because it was not raised in its motion
to dismiss. Dkt. 21 at 28–29. While the respondent may have forfeited that
argument, a party's failure to raise an issue or argument doesn't constitute
waiver. See Henry v. Hulett, 969 F.3d 769, 786 (7th Cir. 2020) (en banc)
("Whereas waiver is the 'intentional relinquishment or abandonment of a known
right,' forfeiture is the mere failure to raise a timely argument, due to either
inadvertence, neglect, or oversight." (quoting United States v. Olano, 507 U.S.
725, 733 (1993)). Moreover, the question of whether § 2255(e) applies on a claimby-claim or whole-application basis is an important question of statutory
interpretation that is likely to recur. See Saxon v. Sw. Airlines Co., 993 F.3d 492,
496 (7th Cir. 2021) (exercising discretion to address an "important and recurring
question of statutory interpretation," even if it was waived in the district court).
Questions relating to § 2255(e) regularly arise in death penalty litigation
when courts are often required to quickly decide novel and complicated legal
questions. No execution date has been set for Mr. Robinson so there is no
urgency at this time. But not addressing the issue at this time creates the risk
that a court in the future would have to decide the question on an expedited
basis. Considering this risk, the better path is to address this purely legal
question at this time rather than defer.
The motion to dismiss, dkt. [15], is DENIED. The Court will allow the
respondent, however, to file an amended response to Mr. Robinson's amended
petition. The amended response, if filed, will completely replace the current
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response. It should therefore set forth all arguments—merits, savings clause,
abuse of the writ, and any other—that the respondent wishes to present in this
litigation.
The respondent shall have 60 days from the entry of this Order to file
an amended response. Mr. Robinson shall have 30 days from the docketing of
the amended response to file a reply.
SO ORDERED.
Date: 1/10/2022

Distribution:
Jonathan C. Aminoff
OFFICE OF THE FEDERAL PUBLIC DEFENDER
[e-mail]
Celeste Bacchi
FEDERAL PUBLIC DEFENDER
[e-mail]
Jonathan Glen Bradshaw
DEPARTMENT OF JUSTICE
[e-mail]

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