Goodwin Procter's Brian Burgess will argue at the U.S. Supreme Court on behalf of a pro se petitioner named Gregory Banister.

Goodwin Procter partner Brian Burgess was scanning the U.S. Supreme Court's online docket earlier this year when he spotted something unusual.

It was a petition written pro se and submitted “in forma pauperis” last September by a Texas prison inmate. That is not necessarily rare, but what caught Burgess's eye is that the high court in January requested a response to the petition from Texas.

Such a request from the court can be “a signal that at least someone is interested” in the case at the high court, Burgess said. Burgess, a Washington partner in the firm's appellate litigation practice, said he looks for such requests on the docket—which are relatively rare—as a way to find cases at early stages that could ultimately be granted certiorari by the Supreme Court. It takes only one justice to request a response, he said.

So Burgess sent a letter offering help to inmate Gregory Banister, who wrote the petition. Banister has been in prison since 2004 on charges of aggravated assault with a deadly weapon. Banister agreed to have Burgess represent him pro bono, and Burgess told the court in March that he was now Banister's lawyer. Texas filed its response in April, and Burgess submitted his reply to Texas soon after.

On Monday, the court granted certiorari in Banister v. Davis, and now Burgess is getting ready to argue his first Supreme Court case in the fall, backed by his Goodwin colleagues. “My firm has been great with supporting the pro bono offers in general, including these efforts at the Supreme Court,” Burgess said.

The court limited the case to one question: “Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby.” Rule 59(e) of the Federal Rules of Civil Procedure states that “a motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” How such a motion is defined affects the deadline for filing appeals.

Banister's initial pro se petition pointed out circuit splits on the question and laid out the complex issues in lawyerly fashion. Burgess said Banister “did a remarkably good job.” He added: “At least from the subsequent conversations with him, the legal sophistication seems to be real. I don't think he was just relying on someone else.”

Burgess said the issue in the case “comes up a lot. It really is a repeat issue for habeas petitioners. Potentially every time they're litigating a habeas case, they might file a motion for reconsideration. And the question is, are they allowed to do that?”

In explaining his novel way of finding cases, Burgess readily tips his hat to Tom Goldstein of Goldstein & Russell, who years ago perfected the technique of cold-calling lawyers who had lost cases at the appeals court level and offering help.

“Tommy was a pioneer in that, and a lot of people now are doing this sort of monitoring for circuit splits. That's something that I do and that we do at Goodwin as well,” Burgess said. “This was another layer that I've tried to do to see if there are additional opportunities triggered by a call for response. I'm sure I'm not the only one doing that.”

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