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May 20, 2011

"The Great Writ is dead in this country" ... at least for some illegal sentences, it seems

A number of helpful readers have made sure that I did not miss while joyfully distracted at the US Sentencing Commission's annual conference a big (and in my view ugly) en banc habeas ruling from the Eleventh Circuit. And one reader made my blogging efforts especially easy by providing this terrific review/summary of the ruling:

The Eleventh Circuit finally issued its en banc opinion in Gilbert, the case about collaterally attacking an illegal sentence. (Previously covered here and here on this blog.)  The Eleventh Circuit rules for the government, 8-3, with Judge Carnes writing, Judges Tjoflat, Pryor, and Dubina each writing a separate concurring opinion, and Judges Martin, Barkett, and Hill each writing a separate dissenting opinion.

Here's the majority:

Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced.  Gilbert insists that prisoners have a right to have errors in the calculation of their sentences corrected no matter how long it has been since the sentences were imposed.  His insistence calls to mind Justice Holmes’ observation that “All rights tend to declare themselves absolute to their logical extreme.”  Hudson Cnty. Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531 (1908).  But as Holmes also explained in the same thought, “Yet all [rights] in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.” Id.

The principles of policy that limit the right to be resentenced in accord with the latest guidelines decisions are those regarding finality of judgment and the important interests that finality promotes.  For reasons we will discuss, the statutory provisions and the decisions furthering finality of judgment are strong enough to hold their own against Gilbert’s claimed right to have a long-ago error in calculating his sentence corrected.

And here's Judge Hill's dissent:

Today, this court holds that we may not remedy such a sentencing error.  This shocking result -- urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice and accepted by a court that emasculates itself by adopting such a rule of judicial impotency -- confirms what I have long feared.  The Great Writ is dead in this country.

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence.  The government hints that there are many others in Gilbert’s position -- sitting in prison serving sentences that were illegally imposed.  We used to call such systems “gulags.”  Now, apparently, we call them the United States.

Nancy King over at the Habeas Book blog has this post describing the Gilbert ruling further, with particular emphasis on the discussion of the Constitution's Suspension Clause in the dueling opinions.

May 20, 2011 at 12:06 PM | Permalink

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Comments

On life support, surely, but not yet dead, at least at the state level. See, e.g., the blog post: "A flood of habeas relief" from Liberty and Justice for Y'all.

For the feds, in non-capital cases, yes: Call the coroner.

Posted by: Gritsforbreakfast | May 20, 2011 12:36:18 PM

Maybe Obama can commute the sentence. That would seem an unobjectionable use of the pardon power.

Posted by: federalist | May 20, 2011 1:55:38 PM

Gilbert demonstrates one thing beyond any doubt: the 11th Circuit is an embarassment to the federal judiciary.

Posted by: federal lawyer | May 20, 2011 2:45:03 PM

Agree that this sounds like a more-than-appropriate use of executive power to commute/pardon.

Very surprised, though, that a judge of the second highest court in the country doesn't seem to appreciate that the "Great Writ" addressed in the Constitution deals with the executive or the military detaining people without charge and without trial, and that even though postconviction remedies have also been given the name "habeas corpus," postconviction remedies are a creature of statute.

Again, not disputing that this sounds like an idea case for commutation, just disturbed that a federal appeals court judge doesn't seem to appreciate the difference between the Great Writ and statutory remedies that can't seriously be considered to be part of the Constitution.

Posted by: guest | May 20, 2011 3:19:44 PM

I think that the judge likely understands the historical derivation of the phrase perfectly well. But over time the phrase has become a loose stand-in for the larger idea of habeas corpus -- that a court maintains the power to correct a fundamentally unjust incarceration. I think that is the sense he was going for. Perhaps not historically precise, but I don't think most informed readers are going to be tripped up by the rhetorical flourish.

Posted by: Anon | May 20, 2011 6:18:30 PM

hmm

"The principles of policy that limit the right to be resentenced in accord with the latest guidelines decisions are those regarding finality of judgment and the important interests that finality promotes."

Guess this means we wont' be seeing too many of those little DO-OVERS the doj likes to do when a partial mistrial occures,,,,,,,


wouldn't want to upset the FINALITY OF JUDGMENT!

Posted by: rodsmith | May 20, 2011 7:22:49 PM

"Very surprised, though, that a judge of the second highest court in the country doesn't seem to appreciate that the "Great Writ" addressed in the Constitution deals with the executive or the military detaining people without charge and without trial, and that even though postconviction remedies have also been given the name "habeas corpus," postconviction remedies are a creature of statute.

Again, not disputing that this sounds like an idea case for commutation, just disturbed that a federal appeals court judge doesn't seem to appreciate the difference between the Great Writ and statutory remedies that can't seriously be considered to be part of the Constitution."

Some judges share that point of view and other judges disagree. The are reasonable arguments to be made for each side.

Posted by: The Death Penalty Sucks. | May 20, 2011 7:39:36 PM

"I think that the judge likely understands the historical derivation of the phrase perfectly well. But over time the phrase has become a loose stand-in for the larger idea of habeas corpus -- that a court maintains the power to correct a fundamentally unjust incarceration. I think that is the sense he was going for. Perhaps not historically precise, but I don't think most informed readers are going to be tripped up by the rhetorical flourish."

Really? So because the Reconstruction Congress enacted a statute to create a remedy where there wasn't one before, the statutory remedy simply "over time" became part of the "larger idea of habeas corpus" and is now part of the Constitution itself? How did that happen? And would that mean that if Congress decided to repeal the statutory right of state prisoners to collaterally attack their state-court convictions in federal district/circuit courts (which I'm not advocating, by the way), it would take a Constitutional amendment to do it? What other kinds of statutes would also become, "super-statutes" that are treated as part of the Constitution itself and can't be repealed or amended too significantly without a Constitutional amendment>

(What determines whether "over time" the "larger idea" of something in a statute becomes part of the Constitution itself, anyway?)

I consider myself at least a reasonably informed reader, and it's troubling to me to see the courts overreach and conflate a statutory remedy, even an important one, with the one that's actually addressed in the Constitution. The result is the overextension of the statutory remedy, and the watering down of the Constitutional one.

Again, none of this is to say that this person doesn't have a very strong claim to executive clemency. I could understand a judge, even one who concurred in the opinion and judgment, writing an opinion indicating his/her view that this guy has gotten a raw deal and really should get an executive remedy because he doesn't have a judicial one, and ordering the opinion forwarded to the Office of White House Counsel and the Office of the Pardon Attorney.

But I'm not persuaded that a statute (or a Constitutional provision) "over time" evolves into an open-ended mandate that permits federal judges to do whatever strikes them as "just," whether or not the Constitution or an Act of Congress allows them to do it.

Posted by: guest | May 20, 2011 7:46:56 PM

"But I'm not persuaded that a statute (or a Constitutional provision) "over time" evolves into an open-ended mandate that permits federal judges to do whatever strikes them as "just," whether or not the Constitution or an Act of Congress allows them to do it."

Do you think putting a 12 year old to death would be constitutional today? It was constitutional back when the 8th Amendment was ratified.

Posted by: The Death Penalty Sucks. | May 20, 2011 8:17:11 PM

What constitutional provision requires the ripping open of a settled criminal judgment? The majority is right. As for clemency, Obama could use his pardon power. I wouldn't object. I wouldn't do it if I were him. This guy's a criminal, and he is where he belongs.

Posted by: federalist | May 20, 2011 8:25:09 PM

"This guy's a criminal, and he is where he belongs."

Serving a sentence that everybody agrees is legally indefensible?

Posted by: The Death Penalty Sucks. | May 20, 2011 8:42:14 PM

He was sentenced pursuant to what was good law at the time--he's had his appeals. That's all due process requires. If Obama wants to extend him grace, fine. Until then, let this criminal rot.

Posted by: federalist | May 20, 2011 10:50:39 PM

my only problem fed is this!

"wants to have an error of law in the calculation of his sentence corrected"

IF based on the law at the time they get the sentence WRONG then. it would be corrected no matter when it is discoverd. But the calculation should be on WHAT was the law at the time.

Posted by: rodsmith | May 21, 2011 2:53:01 PM

federal lawyer

if the 11th Circuit is an "embarassment" to the federal judiciary, then what would you call the 9th and the 6th circuits?

Posted by: DaveP | May 21, 2011 5:00:03 PM

"Serving a sentence that everybody agrees is legally indefensible?"

Have you read the majority opinion?

Gilbert could have legally been sentenced to life in prison under another provision that the government voluntarily withdrew on the understanding that he would be sentenced under the guideline at issue here.

Gilbert is serving a sentence that is *less* than the law provides for his offense and criminal record. That is hardly "indefensible."

Posted by: Kent Scheidegger | May 21, 2011 7:42:46 PM

i haven't read the decision kent. my question is they are saying they did the calculations wrong. If they are wrong based on the law at that time...then they should be corrected based on the law at that time and the agreement in place.

doens't seem like a big deal. if someone screwed up their math at the time. just fix the damn thing!

doens't matter what he COULD have gotten absent an agreement. IF when they did the agreement they messed up the numbers maybe intentionally so they could shade the amount of time he got and the defence could prove it. i'd think whoever was playng with the numbers has just comitted a crime!

Posted by: rodsmith | May 22, 2011 2:11:39 AM

GOD LORD! this boys got a record as long as my arm. over and over again he's been convicted given a sentence then not even come close to maxing one out. then getting parole/probation and violating and/or comitting a whole new crime.

should have jsut shot the idiot and been done with it during the last one!

sorry one chance sure. two maybe....three would be verry iffy...but 10-15....kill em!

Posted by: rodsmith | May 22, 2011 2:16:44 AM

haven't read it. but have picked up from the comments and the post that the court has a problem with disturbing finality and when if it can ever really say a judgment is final if it can continue to be attacked and overturned. True?

If so, then ... it seems to me that when a judgment is final, and a higher court reviews it and finds error great enough to grant relief, that judgment was not deserving of finality. Just a thought.

Posted by: = | May 23, 2011 11:30:35 AM

@ =

The problem with your idea is that it's entirely circular. It would simply be a prescription for saying "then no judgment is ever final," because, for many lawyers, and a number of judges, would simply treat it as a challenge: if you try hard enough, you can almost always find *something* that you can say was an "error great enough to grant relief" such that the original judgment wasn't deserving of finality.

Posted by: guest | May 23, 2011 4:17:05 PM

I would note that Guest's position is discussed in one of the concurrences, regarding the fact that Habeas Corpus is a way to challenge detention or imprisonment when there has been no trial; and 2255 is statutory and “gift[] that may be bestowed or withheld" (citation omitted).

Posted by: Bill B. | May 24, 2011 5:43:47 PM

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