Mohammed Jabateh v. United States

On direct appeal, the Third Circuit agreed with petitioner that his conduct was not a crime under the plain meaning of the statutory text underlying two of the four counts of conviction. But the circuit also held that the plain-error rule required it to affirm petitioner’s unlawful convictions and 20-year consecutive sentence, because the court deemed its statutory holding not “obvious.” On review of the denial of petitioner’s subsequent, timely motion to vacate under 28 U.S.C. § 2255, the circuit relied on the “relitigation bar” to rule that its prior plain-error determination categorically prohibited collateral relief from the unconstitutional convictions and sentence. The Question Presented is: Is collateral relief under 28 U.S.C. § 2255 from an unconstitutional conviction prohibited by a “relitigation bar,” where on direct appeal the court held that the defendant’s conduct did not come within the clear text of the charged statute, yet affirmed on the basis that its conclusion was not “obvious” under the plain error rule, even where § 2255’s “procedural default” doctrine would be overcome by the government’s waiver of that defense and the petitioner’s “actual innocence”? Summary reversal is suggested.