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May 6, 2014

"Habeas and the Roberts Court"

The title of this post is the title of this intriguing new article by Aziz Huq.  Here is the abstract:

Postconviction habeas comprises about seven percent of federal district courts’ dockets and between eight and twenty percent of Supreme Court certiorari work.  Scholars of all stripes condemn habeas as an empty ‘charade’ lacking ‘coherent form.’  They urge as a result root-and-branch transformation. Contra that consensus, this Article first advances a descriptive hypothesis that the Roberts Court’s habeas jurisprudence is more internally coherent than generally believed — even if its internal logic has to date escaped substantial scholarly scrutiny.

The Article develops a stylized account of the Roberts Court’s recent jurisprudence as an instrument for sorting at the front end of litigation be-tween cases warranting either less or more judicial attention. This account suggests that the Roberts Court titrates judicial attention by streaming cases into one of two channels via a diverse set of procedural and substantive mechanisms.  In Track One, petitioners obtain scanty review and almost never prevail. In Track Two, by contrast, petitions receive more serious consideration and have a more substantial (if hardly certain) chance of success. This stylized account of the case law enables more focused investigation of the values that the Roberts Court pursues through its current articulation of habeas doctrine — and this is the Article’s second task.

Drawing on both doctrinal analysis and law-and-economics models of litigation, the Article explores several possible justifications for the Court’s observed bifurcated approach. Rejecting explanations based on state-centered federalism values, sorting, and sentinel effects, the Article suggests that some conception of fault best fits the role of a central organizing principle.  This aligns habeas with constitutional tort law, suggesting a previously unexamined degree of interdoctrinal coherence in the Roberts Court’s attitude to discrete constitutional remedies. While the central aim of this Article is positive and descriptive in character, it concludes by examining some normative entailments of habeas’s persistence in a bifurcated state.  Specifically, I suggest that a better understanding of the Court’s fault-based logic casts skeptical light on existing reform proposals, and is at least consistent with the possibility that habeas could still serve as a tool in some larger projects of criminal justice reform.

May 6, 2014 at 09:12 AM | Permalink


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Decades ago , it was necessary for my brother to obtain relief in a traffic conviction via Federal habeas in USDC SD [Columbus, OH) .

An easier route , albeit lacking comity between Federal and State courts , would be aggressive Federal monitoring of those few municipal courts that deserve it, e.g. , live streaming , electronic monitoring of trial judge's vitals , including amount of blood oxygen % , etc.

I once witnessed a situation where an unloaded M1 rifle with steel butt plate and fixed combat bayonet would have been helpful in enforcing the rule of law .

Posted by: Docile Jim Brady - Columbus OH 43209 | May 6, 2014 9:30:39 AM

My sense is that most Federal Judges loathe their 28 U.S.C. sections 2241, 2254 and 2255 habeas corpus case loads. Except in death penalty cases, most habeas corpus motions and petitions are not prepared and filed by attorneys, but are prepared and filed pro se, by semi-educated inmates, from prison. Most Federal Judges have pro se habeas clerks who wade through the mass of inmate filings, and make recommendations about them, before they are even referred to a U.S. Magistrate Judge, who then makes a report and Recommendation, which the District Judge usually follows. Most pro se inmates and many attorneys are unaware that if they do not make proper objections to the Magistrate's Report and Recommendations, they will later be barred from raises the issue on appeal, if a Certificate of Appealability is granted, by either the District Judge or by the Court of Appeals. Although habeas corpus is an extraordinary remedy, few motions or petitions or addressed by the Federal District Courts in anything approaching a timely manner. I am presently working on an appeal to the Sixth Circuit from the denial of a 2255 Motion (the issue is ineffecivee assistance of counsel at plea bargaining, and the District Judge held an evidentiary hearing, before finding that the first "Strickland" prong, but not the second had been satisfied and granting a Certificate of Appealability). The 2255 Motion was originally filed in the Eastern District of Kentucky in November 2009. The District Judge belatedly held an evidentiary hearing (the only one she has held during 12 years on the bench)in August 2012. She even sat on a Motion for a Status Conference for more than one year! She finally entered a Memorandum Order and Judgment in March 2013. A Certificate of Appealability was granted in May 2013. The appeal is now fully briefed, and counsel is awaiting a date for oral argument before the Sixth Circuit. Meanwhile, the defendant physician is 73 years old and has already served 13 years of his 20 year sentence. If our arguments are correct, he turned down the Government's 41-month plea offer in 2000 due to ineffective assistance of counsel, so he has already served 8 years too long in Federal prison. To date, the habeas corpus proceedings alone have taken 4 1/2 years, following his three direct appeals to the Sixth Circuit (the sentence was vacated twice and remanded for resentencing). Only between 1% and 2% of Federal habeas corpus motions and petitions ever result in any net relief for the defendant. Much time and many resources are invested in habeas corpus cases, with few positive outcomes or net changes, in substantial part because 98% of the cases are filed by pro se inmates, who don't really know the law. It's very frustrating for both the parties, their counsel and the Judges. Changes need to be made to streamline and expedite treatment of habeas corpus cases, since the writ of habeas corpus supposed to be an extraordinary remedy against illegal and unConstitutional detention in jail or prison.

Posted by: Jim Gormley | May 6, 2014 1:28:15 PM

Although I am a University of Virginia Law School grad, I developed my expertise in habeas corpus law during the 8 years I served as an inmate in Federal prison, ending in 2008. I was able to help a few men get relief, who would otherwise have been unlikely to get habeas corpus relief because of their lack of education and lack of knowledge of the law, or how to properly write a brief. I am most proud of my work on behalf of 14 Mariel Cuban INS detainees, who were held with me at FCI- Manchester, Kentucky in the Spring of 2003, when the Sixth Circuit rendered its En Banc decision in "Rosales-Garcia v. Holland", 322 F.3d 386 (6th Cir. 2003). The Circuit Court joined one side of a major Circuit split, by holding that the Government cannot hold INS detainees in Federal prison indefinitely, without any Federal criminal convictions, just because the Government cannot deport them back to Cuba, as it would normally do with a non-citizen after he completed a state court criminal sentence (or was paroled from such a sentence). Instead, the Court held that if deportation to the illegal alien is not possible within 6 months, then the Government must release him to the streets of America on "immigration parole". I prepared 14 pro se 2241 Petitions for Habeas-Corpus for the Mariel Cuban INS detainees at Manchester, which were filed in U.S. District Court in the Eastern District of Kentucky, at London. After the U.S. Supreme Court denied the Government's Petition for Certiorari, the Government conceded that the Petitions should be granted, and it wanted the Judge to close the files. By that time, I had been in The Hole, on 23-hour lockdown, for having helped the (mostly illiterate, Spanish-speaking) Cubans with their Petitions, for several months. The DOJ contacted my Warden and asked him to stop whoever was helping the Cubans with their legal work. My Warden knew me well, since I was the only inmate on the compound with a real law degree. I wrote a letter (from The Hole) to the District Judge, explaining why she needed to keep the cases files open and maintain supervision over the Cubans, after she granted their Writs of Habeas Corpus. The Cubans would be joining family and friends living in Little Havana, near Miami, upon release. Florida is in the Eleventh Circuit, which was on the opposite side of the Circuit split from the Sixth Circuit's holding. The Eleventh Circuit continued then to hold that illegal aliens had no rights under the U.S. Constitution, so they could be held indefinitely in Federal prison as INS detainees, without any Federal criminal convictions. One inmate whose release I helped secure had been held as an INS detainee, in Federal prison, for 17 years, without a Federal criminal conviction. If the E.D. Ky. Judge had not kept the files open and maintained supervision, the Government had intended to re-arrest those men on the streets of Miami, and re-incarcerate them as INS detainees, in prisons without the Eleventh Circuit, where that practice was still the law of the Circuit. Because the E.D. Ky. Judge refused to close the files, and maintained supervision,, the Government could not re-arrest those Cuban men on the streets of Miami. A few years later, the U.S. Supreme Court resolved the Circuit split in the same way that the Sixth Circuit did in Rosales-Garcia v. Holland. I even received (still in The Hole!) a brief thank you note from the Judge for giving a heads up about why the cases should remain open and supervision should be maintained. Few Americans would believe what out Government did to the Mariel Cubans for many years, just because Fidel Castro would not accept their transfer back to Cuba as deportees. After too many years, the Federal courts waded in and stopped the Government's unconstitutional practices. The Great Writ of habeas Corpus was thelegal salvation for the Cuban INS detainees.

Posted by: Jim Gormley | May 6, 2014 2:04:23 PM

Jim: I respect your Top Tier diploma. However, did you ever look into the backgrounds of the Cuban detainees before helping them work th esystem?

Posted by: Supremacy Claus | May 6, 2014 2:40:29 PM

Supremacy Claus: While I was well aware that the Mariel Cubans were not exactly the cream of Cuban society, I take a bottom line view when it comes to our Government unConstitutionally incarcerating anyone in a Federal prison, without a any Federal criminal conviction. Under our Constitution, the had aright to be free, pursuant to an En Banc decision of the Sixth u.S. Circuit Court of Appeals. If an when they actually commit a crime while free on Immigration Parole, then they can be re-incarcerated pursuant to a criminal sentence, like any American. They deserved their chance, and I helped them get what they had coming under our laws and out Constitution. And I felt very good about what I did.

Posted by: Jim Gormley | May 7, 2014 11:34:09 AM

got to give Jim this one SC sorry last time I looked our constitution talks about GOD given rights that no gov't is allowed to screw with. Once you hit our shores they apply to you period.

Posted by: rodsmith | May 7, 2014 4:10:13 PM

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