ZENON GRZEGORCZYK v. UNITED STATES
No. 21-5967
SUPREME COURT OF THE UNITED STATES
June 30, 2022
597 U. S. ____ (2022)
The petition for a writ of certiorari is denied.
Statement of JUSTICE KAVANAUGH, with whom THE CHIEF JUSTICE, JUSTICE THOMAS, JUSTICE ALITO, and JUSTICE BARRETT join, respecting the denial of certiorari.
The defendant in this case wanted to murder six people whom he blamed for his divorce and for the loss of custody of his child. He hired and paid hitmen. And he told the hitmen to burn the six intended victims alive. So that he would have a good alibi, the defendant planned to be in Poland when the murders occurred. It turned out, however, that the would-be hitmen were undercover law enforcement officers. Sо the defendant was arrested and federally charged with murder for hire and a firearms violation.
The United States then negotiated a plea deal with the defendant. The plea agreement was unconditional. Among other things, the defendant waived any right to challenge his murder-for-hire and firearms convictions. Consistent with that plea agreement, the defendant was sentenced to almost 18 years of imprisonment.
A couple of years later, the defendant filed a motion under
In order to provide relief to the defendant in this case, the Executive Branch therefore has no need to enlist the Judiciary, or to ask the Judiciary to depart from standard practices and procedures. To the extent that the Department of Justice has concluded that this defendant‘s conviction should be vacated or that his sentence should be reduced, the Attorney General may recommend a pardon or commutation to the President, and the President may pardon the defendant or commute the sentence.
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER, JUSTICE KAGAN, and JUSTICE GORSUCH join, dissenting from the denial of a grant, vacate, and remand order.
Neither the Federal Government nor federal courts are immune from making mistakes. Accordingly, on rare occasions, after the Government prevails in a case in a court of appeals, the Solicitor General asks this Court to grant a petition for certiorari, vacate the judgment below, and remand (GVR) in light of an error or an intervening development. Such requests occur in only a handful of the several thousand cases this Court considers every Term on its certiorari docket. When they are made, however, they are often of enormous consequence to the nongovernmental party. They may affect a petitioner‘s deportation, the length of a petitioner‘s prison sentence, or even a petitioner‘s eligibility for the death penalty.
Today marks the second instance this Term in which this Court has refused to issue a GVR order, notwithstanding the Solicitor General‘s confession of error, in a criminal case with great stakes for the individual petitioner. See Coonce v. United States, 595 U. S. ____ (2021) (SOTOMAYOR, J., dissenting). Through these cases, the Court appears to be quietly сonstricting its GVR practice. Here, it deprives petitioner Zenon Grzegorczyk of an opportunity to remedy an unlawful 7 1/2-year component of his prison sentence, despite the Government‘s support. Nothing in precedent or history supports such a cramped conception of the Court‘s GVR practice, which forces individuals like Grzegorczyk to bear the brutal cost of others’ errors and denies them the benefit of a readily availаble, and potentially life-altering, procedural mechanism to correct those errors.
I
In 2014, Grzegorczyk pleaded guilty in federal court to one count of knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of
The District Court denied Grzegorczyk‘s motion based on his waiver of appellate rights. Grzegorczyk appealed, arguing that his claim was cognizable. The Government responded that although
Grzegorczyk petitioned for certiorari. The Government responded by asking this Court to issue a GVR order. See Brief for United States 7-8. The Government explains that “its usual practice is to waive any applicable procedural defenses on collateral review” where it “determines that a defendant‘s conviction under Section 924(c) is invalid and no other grounds support the defendant‘s overall sentence.” Id., at 10-11. Below, the Government did not follow this practice, and instead invoked Grzegorczyk‘s waiver, because it mistakenly believed
The Government adds that GVR would permit correction of an additional error in Grzegorczyk‘s sentence: The parties had erroneously agreed that his
Nonetheless, this Court denies certiorari.
II
Grzegorczyk‘s case falls comfortably within this Court‘s longstanding GVR practice, as codified in statute and applied in precedent. The authority for this practice stems from
This Court has historically exercised this broad grant of authority to issue GVR orders in many circumstances, including, as relevant here, “in light of the position asserted by the Solicitor General” (e.g., where the Solicitor General confesses error). The Court has entered GVR orders on the Government‘s motion, without undertaking any express analysis of the merits, for well over a century. See, e.g., De Baca v. United States, 189 U. S. 505 (1903) (per curiam) (“Error being confessed by the appellees, judgment reversed, and cause remanded with directions to proceed therein according to law“); Ballin v. Magone, 140 U. S. 670 (1891) (per curiam) (“Judgment reversed, with costs, by consent of [the Attorney General], who confessed error, and cause remanded to be proceeded in according to law and justice, on motion of Mr Assistant Attorney General Maury for defendant in error“).1
In the modern era, the Court has explained that a GVR order may be appropriate even where the Solicitor General may not concede, or the Court may not perceive, an absolute certainty that the judgment would be different on remand:
“Where intervening developments, or recent developments that we have reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation, a GVR order is, we believe, potentially appropriate. Whether a GVR order is ultimately appropriate depends further on the equities of the case . . . .” Lawrence v. Chater, 516 U. S. 163, 167-168 (1996) (per curiam).
The justifications for this “reasonable probability” standard are many. The Court has explained that a GVR order can, depending on the circumstances, “conserv[e] the scarce resources of this Court that might otherwise be expended on plenary consideration, assis[t] the court below by flagging a particular issue that it does not appear to have fully considered, assis[t] this Court by procuring the benefit of the lower court‘s insight before we rule on the merits, and alleviat[e] the ‘[p]otential for unequal treatment’ that is inherent in our inability to grant plenary review of all pending cases raising similar issues.” Id., at 167. In the criminal context in particular, the Court has emphasized that “[w]hen a litigant is subject to the continuing coercive power of the Government in the form of imprisonment, our legal traditions reflect a certain solicitude for his rights, to which the important public interests in judicial efficiency and finality must occasionally be accommodated.” Stutson v. United States, 516 U. S. 193, 196 (1996) (per curiam).
Applying this standard here, a GVR order is entirely appropriate. The Solicitor General‘s considered concession that
III
Notwithstanding the foregoing analysis, and contrary to Lawrence and Stutson, the Court denies certiorari. It thereby deprives Grzegorczyk of an opportunity to correct two patent errors in his convictions and sentences, despite the Government‘s urging. Current and former Members of this Court have raised arguments for constricting this Court‘s longstanding GVR practice, but none justify this harsh result.
Some Justices have opined, contrary to the aforementioned precedents, that GVR orders are inappropriate unless the Solicitor General confesses error in the outcome below, not just the reasoning, or the Court itself determines that the outcome was erroneous.3 To begin with, however, this alternative view does not support the instant disposition. As the Solicitor General explains, the procedural bar on which the Court of Appeals premised its denial of relief to Grzegorczyk is waivable, and the Government would waive it on remand. See Brief for United States 11 (citing Wood v. Milyard, 566 U. S. 463, 472-473 (2012)). The Government‘s concession that Grzegorczyk‘s
Even setting aside the circumstances of this case, the alternative view fails on its own merits. It cannot be squared with the only textual limitation on the Court‘s statutory authority in such cases, which requires that a GVR order “be just under the circumstances.”
The alternative view does a grave disservice to these principles. By dismissing GVR orders as mere “tutelary remand[s], as to a schoolboy made to do his homework again,” Lawrence, 516 U. S., at 185-186 (Scalia, J., dissenting), it gives little or no weight to concerns about injustice to litigants and damage to public confidence. No doubt, this Court must guard zealously against unwarranted impositions upon “the hard-working judges of the [Courts of Appeals].” Myers v. United States, 587 U. S. ____ (2019) (ROBERTS, C. J., dissenting) (slip op., at 1). Clearly, however, no judges would privilege their workloads above all other considerations, particularly courts’ interest in the fair administration of justice.
The suggestion that this Court should independently evaluate a confession of error on the merits before issuing a GVR order also falters. This Court has often remarked that it is “a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). The Court‘s longstanding GVR practice is consistent with that concеption: It does not engage this Court in routine error correction, but leaves it to the lower courts to revisit their judgments, including possible alternative grounds for those judgments, in the first instance. See Lawrence, 516 U. S., at 167; Stutson, 516 U. S., at 197.6 In this way, GVR orders
Because none of the aforementioned objections apply to Grzegorczyk‘s petition, see supra, at 6-7, the Court‘s denial of certiorari must be premised on a different justification, one still more novel. That rationale seems to be this: The Government‘s shift in position, though an intervening development, is not the kind of development that warrants a GVR order. The Court‘s apparent concern is that although the Government concedes that the premise of the decision below (the Government‘s assertion of a procedural bar) hаs changed, the Government does not object to the legal analysis that flowed from that premise (that the procedural bar, if asserted, foreclosed Grzegorczyk‘s claim). See ante, at 1-2 (statement of KAVANAUGH, J., respecting denial of certiorari).
This Court‘s GVR practice, however, has never been so inflexibly focused on correcting legal errors. Rather, as explained, this Court has long issued GVR orders to facilitate the fair and just resolution of individual cаses in the lower courts. See, e.g., Lawrence, 516 U. S., at 174-175 (issuing a GVR order to allow a lower court to “consider [a new] administrative interpretation that appears contrary to the Government‘s narrow self-interest” and “furthe[r] fairness by treating Lawrence like other future benefits applicants“). It is therefore no answer to observe that the Government “should have no difficulty presenting [a] matter to subsequent panels of the [Court of Appeals]” in other cases. Myers, 587 U. S., at ____ (ROBERTS, C. J., dissenting) (slip оp., at 2). The Government‘s future litigation positions offer cold comfort to a petitioner who must face additional years in prison, if not deportation or execution, based solely on happenstance, and despite the ready availability of a remedy that the Government affirmatively advocates.7
Ultimately, underpinning many criticisms of the Court‘s GVR practice seems to be a desire to teach the Government that it must live with its own litigation сhoices. That logic persuades where, for example, the Government appears to seek a GVR order as “part of an unfair or manipulative litigation strategy,” such as an effort to avoid this Court‘s review of an issue. Lawrence, 516 U. S., at 168; see also Hicks, 582 U. S., at ____ (GORSUCH, J., concurring) (slip op., at 3)
* * *
All agree that a GVR order is inappropriate when the outcome plainly would not change on remand. Here, however, significant portions of Grzegorczyk‘s convictions and sentеnces are unfair and illegal, as Grzegorczyk‘s prosecuting and jailing authority concedes. In view of Grzegorczyk‘s liberty interests, and consistent with the Government‘s responsibility to ensure that the laws are applied fairly and accurately, the Solicitor General asks this Court to afford the Government and the courts below a chance to address this concern, as the Court has done for decades. Yet the Court declines to do so. The rules of law under which people are deprived of their liberty or their lives should be made of sturdier stuff. I respectfully dissent.