Mahfooz Ahmad v. Colin Day, et al.

This Court has held that when it announces a rule of federal law, that rule must be given full retroactive effect in all cases still pending on direct review. Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97 (1993); Griffith v. Kentucky, 479 U.S. 314 (1987). The circuits are divided on what counts as “pending on direct review.” Some courts, such as the Seventh and Ninth Circuits, have applied intervening Supreme Court decisions to cases dismissed without prejudice or still open procedurally. See Reich v. Continental Cas. Co., 33 F.3d 754 (7th Cir. 1994); Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc). Other courts, including the Fourth and Eleventh Circuits, have treated such cases as effectively final and declined to apply intervening precedent. See United States v. Sanders, 247 F.3d 139 (4th Cir. 2001); United States v. Ardley, 273 F.3d 991 (11th Cir. 2001). The Second Circuit here aligned with the restrictive approach, refusing to recall its mandate or consolidate petitioner’s appeals despite the fact that the dismissal was without prejudice and no court has ever adjudicated the merits of petitioner’s claims. The question presented is: Whether a civil case dismissed without prejudice, in which appellate review was prematurely terminated and certiorari previously denied, remains “pending on direct review” for purposes of applying this Court’s decision in Muldrow v. City of St. Louis, 144 S. Ct. 967 (2024), under the retroactivity principles of Harper, or whether such a case is treated as final and subject only to collateral review?