Petitioner entered a plea agreement with the Government whereby, in exchange for his guilty plea to certain offenses, the Government agreed to “withdraw and dismiss, with prejudice, [the remaining offenses] after such time as the military judge announces the sentence and before the court- martial adjourns.” At the trial, the military judge announced the sentence and the Government trial counsel, who functions as the prosecutor, “move|[d], pursuant to the plea agreement, to withdraw and dismiss, with prejudice [the remaining offenses].” On appeal, the United States Air Force Court of Criminal Appeals (AFCCA) specified an issue as to whether the withdrawn offenses were “dismissed with prejudice, vice dismissed with prejudice conditioned upon the completion of appellate review.” Pet. App. 4a.

The Government argued not only that prejudice did not attach until final appellate review was complete, but also that success by the Petitioner on appeal “cancelled [the] original plea agreement” and that the case should be returned to the trial level to allow the Government to retry Petitioner. Rather than address the issue it specified, the AFCCA side-stepped it and held, without analysis, that the “issue [was] not ripe and decline[d] to address it.” Pet. App. 4a.

The question presented 1s:

Did the lower court err in applying ripeness to decline to resolve whether prejudice attached to the dismissal of three of Petitioner’s charges immediately or only after completion of appellate review?

State Capitol Complex § MICHAEL R. WILLIAMS Building 1, Room E-26 Solicitor General Charleston, West

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1. Does the District of Guam have subject matter jurisdiction to review Suspension Clause claims pursuant to Boumediene v. Bush when a petitioner requests common law release?

2. After a petition for habeas corpus is filed in a certain District Court and the Government physically moved the _ petition’s intended beneficiary into the immediate custodianship of a party not in the habeas corpus jurisdiction of the first District Court, did the Government have an independent duty to move the original District Court to transfer venue to the appropriate District Court the Government moved the writ’s intended beneficiary into?

Section § 2254(d)(2) allows habeas review for a violation of a state petitioner’s rights where the state court’s adjudication of the proceeding “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

At Petitioner’s trial, evidence was presented to support the theory that Shemel Thomas was killed in defense of Petitioner. Nevertheless, the Michigan Court of Appeals concluded that the record contained “no evidence” to support a defense of others instruction. Is this question properly addressed under 28 U.S.C. § 2254(d)(2) as this Court held in Brumfield v. Cain, 576 U.S. 305 (2015). Or, is 1t properly disposed of under 28 U.S.C. § 2254(d)(1) as a “mixed question of law and fact”?

Contrary to this Court’s precedent, the Sixth Circuit found in the decision below that “whether to provide a jury instruction” based on a particular set of facts “is not the kind of fact-based determination subject to scrutiny under § 2254(d)(2).” Mercer v. Stewart, 171 F.4th 897, 905 (6th Cir. 2026); McMullan v. Booker, 761 F.3d 662 (6th Cir. 2014). Ina case like this, where the error involved a state court’s misreading of the factual record, the lower court’s decision conflicts with precedent from this Court, from the Ninth Circuit, and highlights the tension within the opinions of the Sixth Circuit.

Under Sixth Circuit precedent, factual issues like the one in this case can never reach §2254(d)(2). Following the Sixth Circuit’s analysis in Keahey v. Marquis, 978 F.3d 474, 4778-81 (6th Cir. 2020), it 1s clear that so long as the factual error involves a defense that this Court has not squarely and explicitly named as one a defendant has a right to present, §2254 petitioners who have been deprived of the right to present a defense in the Sixth Circuit have no path to relief once a state court has made an unreasonable determination of the facts.

i

1. Whether a federal court must grant a motion for judgment of acquittal when, construing the evidence in the light most favor- able to the Government, evidence of guilt and innocence is evenly balanced.

2. Whether evidence that one person planned to commit an unlawful act, he asked others to commit acts that furthered that plan, and they did so in secrecy is sufficient to prove a conspiracy when the concealment of their actions had equally plausible expla- nations.