To be sure, in the wake of Bousley, "the First Circuit has made it clear that the fact that there are First Circuit precedents that hold against the movant's argument does not suffice to establish futility." United States v. Dean, 231 F. Supp. 2d 382, 386 (D. Me. 2002) (emphasis added). Yet the government does not and cannot point to any authority suggesting that Reed does not apply when the Supreme Court expressly overrules its own prior precedent.
It is true that, following Bousley, courts in this circuit have found that claims are not "novel" when they had been raised in other proceedings and adjudicated in other courts, or when evolving Supreme Court case law suggested the viability of the claims. See, e.g., Damon v. United States, 732 F.3d 1, 4-5 (1st Cir. 2013); United States v. Dean, 231 F. Supp. 2d 382, 386-87 (D. Me. 2002); see also Derman v. United States, 298 F.3d 34, 44 n.6 (1st Cir. 2002) (compiling cases in which courts determined in the context of procedural default that petitioners could have foreseen the Supreme Court's Apprendi decision); McCoy v. United States, 266 F.3d 1245, 1258-59 (11th Cir. 2001) (noting with approval cases suggesting that Apprendi-based arguments on collateral review were not novel because of the long history of "Apprendi-like" arguments pre-dating the Supreme Court's Apprendi decision). Bousley also emphasized that "futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time."
Proposed Disposition In contrast to the two other Free Speech Coalition premised § 2255 motions that have been addressed in this District, United States v. Dean, 231 F. Supp.2d 382 (D.Me. 2002) (Singal, J.); United States v. Oakes, 224 F. Supp.2d 296 (D.Me. 2002) (Carter, J.), Hilton's § 2255 motion is a rare posture. He has persistently raised his constitutional argument commencing at the indictment phase, including twice in direct appeals to the First Circuit, and his argument has now been embraced by the United States Supreme Court relatively shortly after his conviction.