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GOVERNMENT TRIES TO TORPEDO SCOTUS HABEAS ARGUMENT
During Supreme Court oral arguments in Maxwill v. Dinis last week, the Solicitor General suggested for the first time that the petitioner – who had filed a 28 USC § 2241 habeas corpus petition claiming the BOP had miscalculated his First Step Act credits – was going to halfway house in January anyway. That meant the case was about to be moot, the SG argued.
The argument left Justices vexed that the government was only now arguing that the case, which was fully briefed and argued, should be dismissed as improvidently granted (known in SCOTUS-speak as a “DIG”).
Justice Ketanji Brown Jackson responded that the Supremes had already decided to address Maxwell’s issue when it granted certiorari five months ago. “What is concerning me about your DIG argument is that it sounds like we are relitigating certiorari,” Jackson said.
She suggested the Court could issue a narrow ruling based on Maxwell’s specific circumstances, rather than using “this case to define every circumstance in which habeas is appropriate.” That result would deprive other prisoners of badly-needed high court guidance on the use of 2241 habeas.
The narrow question, Justice Jackson said, is whether a prisoner is able to bring a habeas claim that “he’s being unlawfully detained because he’s entitled to placement in a halfway house if his good-time credits had been calculated properly.”
Maxwell’s claim is that habeas corpus is not limited to petitions seeking immediate release from all forms of custody, but instead can be used where a prisoner is being deprived of less restrictive custody, such as from an institution to a halfway house or home confinement. Such prerelease custody is still BOP custody, but it’s much closer to freedom.
In Supreme Court briefing, the government agreed with petitioner Maxwell, but then at last week’s oral argument, suddenly veered into its mootness claim, telling the justices that if they reverse and remand Maxwell with an order that the district court hear the habeas, it will likely become moot before it can be decided.
“So, even if it’s not moot here, it’s going to be moot down there [in the lower court] real quick, is what you’re telling us?” Justice Neil Gorsuch asked.
“Absolutely, yes,” the government replied.
The DOJ attorney acknowledged under questioning that the government had not raised that argument when the Supreme Court granted review of the case last spring.
“That was our bad,” Assistant to the Solicitor General Kevin J. Barber told the justices.
Justice Sonia Sotomayor complained that Barber was now trying to “win on an argument that you failed to raise on cert.”
“There’s just no reason for this court to have buyer’s remorse on this case,” Maxwell’s attorney responded.
Justice Gorsuch later told Barber, “I haven’t heard ‘my bad’ before at the podium. Good on you.”
Maxwell v. Dinis, Case No. 25-5930 (argued November 2, 2026)
Law360Pulse, ‘Our Bad’: Feds’ First Step Act Argument Surprises Justices (November 2, 2026)
Courthouse News Service, Feds fumble push to squash prisoner transfer to halfway house at SCOTUS (November 2, 2026)
~ Thomas L. Root