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January 9, 2007

Shouldn't SCOTUS have just DIG'd Burton?

Here is a question for SCOTUS gurus: shouldn't the Supreme Court in Burton have just dismissed the petition as improvidently granted (a DIG), rather than turn the case into a ruling on federal AEDPA law?

The Court's per curiam ruling in Burton v. Stewart can be found at this link, and the first two sentences of the opinion tell the heart of the story:

We granted certiorari in this case to determine whether our decision in Blakely v. Washington, 542 U.S. 296 (2004), announced a new rule and, if so, whether it applies retroactively on collateral review.  We do not answer these questions, however, because petitioner — a state prisoner seeking postconviction relief from the federal courts — failed to comply with the gatekeeping requirements of 28 U.S.C. §2244(b).

Because Burton was supposed to be about Blakely retroactivity, the parties and amici focused on this complicated and very consequential issue.  (The Burton briefs can be found here.)  But the per curiam opinion, while avoiding Blakely retroactivity issues completely, turned into a fairly extensive exegesis of how to apply provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

The parties in Burton barely discussed AEDPA in their briefs, and the Solicitor General's amicus brief did not even mention this issue.  Though I am not sure if Burton breaks any important AEDPA ground, wouldn't a truly reserved Court have just DIG'd this case rather than opine on a set of issues that were not fully briefed?   

Because the AEDPA issue involved a jurisdictional matter, perhaps the Court considered a DIG inappropriate.  But I still think a DIG followed by a grant in another Blakely retroactivity case would have been a much better way to deal with these matters after so many folks, upon the Court's decision to grant cert, spent so much time and energy on the important (and now still unresolved) Blakely retroactivity issue.

UPDATE:  I'm convinced by commentors to this post and Howard that the jurisdiction issue and other related considerations justified the Court's decision not to simply DIG Burton.  Left open, however, is whether, when and how SCOTUS will finally get to the issue of Apprendi and Blakely and Booker retroactivity. 

Relatedly, I think the AP's headline reporting on the Burton ruling is telling: "High Court Rules Against Wash. State Rapist Who Wanted Sentence Reduced."  I guess that headline is accurate, but it certainly gives the case a different flavor than one might expect.

ANOTHER UPDATE:  In you really dig DIGs, be sure to check out a recent article just brought to my attention:  Michael E. Solimine & Rafael Gely, The Supreme Court and the DIG: An Empirical and Institutional Analysis, 2005 Wisconsin Law Review 1421.

January 9, 2007 at 12:15 PM | Permalink


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Burton probably provides some needed guidance about the integrity of AEDPA's one filing policy, so it is not a complete waste of time. They can deal with retroactivity later, on a non-AEDPA case.

Posted by: federalist | Jan 9, 2007 12:40:54 PM

The simplest explanation is that a DIG would have resulted in the lower courts' judgment remaining in tact, whereas the per curiam opinion vacates those judgments on account of the absence of jurisdiction.

Posted by: anon | Jan 9, 2007 12:49:36 PM

Maybe your complaint should rather be that the Court didn't ask for supplemental briefing on the AEDPA issue.

Posted by: Chris | Jan 9, 2007 1:24:48 PM

I think "anon" at 12:49 has the best guess.

Posted by: Orin Kerr | Jan 9, 2007 1:51:58 PM

I do not agree with your characterization of the issue as inadequately briefed. The successive petition question was a major section of the respondent's brief and in the CJLF amicus by yours truly (both available through the link in the main post). It is true that petitioner did not devote enough attention to it, but that was not for lack of opportunity. The state had raised this objection consistently from the beginning.

The fact that five federal jurists (the magistrate judge, the district judge, and the three judge panel) all got this fairly simply question of habeas jurisdiction so stunningly wrong is by itself an indication that it warranted a per curiam opinion.

No, I wouldn't have dug a DIG, Doug.

Posted by: Kent Scheidegger | Jan 9, 2007 1:57:47 PM

Like Orin Kerr, H. Bashman also agrees with anon's perspective.

Posted by: student | Jan 9, 2007 2:26:19 PM

Truly disappointing. I think the point about requesting supplemental briefing is a good one. In fact, in the other case today where SCOTUS "ducked" the issue on which cert was granted, the Court did request supplemental briefing after oral argument. See U.S. v. Resendiz-Ponce, No. 05-998, at 2.

It is consistent with precedent for the Court to decide the jurisdictional issue, even if it would not have affected the case's outcome. In other words, the Court could not have assumed without deciding that jurisdiction existed and still ruled against Burton. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (rejecting the doctrine of “hypothetical jurisdiction” when jurisdictional concerns would not affect the outcome, in order to reach the merits of a case).

If a DIG would have encouraged the Court to grant cert in another Blakely retroactively case, then a DIG would have been preferred. (Do DIG’s usually result in a new cert grant?) However, the per curium at least gives a clarification and summary of “second and successive” petition status.

Ultimately, it is disappointing that we still do not have an answer from SCOTUS on the retroactivity issue, despite an obvious/significant interest (and opportunity) in deciding the issue.

Posted by: DEJ | Jan 9, 2007 2:48:51 PM

Unbelievable! Here in Indiana, our supreme court delayed oral argument on a case touching on Blakely retroactivity so they could await Burton, and now this...wow.

Posted by: anon | Jan 9, 2007 4:10:23 PM

In a nutshell, Burton’s petition raised a question/issue that was not properly exhausted, and was not excused from the requirement (because it was presumably known to him that he might have a legitimate challenge after his sentence became final). As such it was not authorized explicitly as a “second or successive“ petition as required. But requiring authorization to proceed with a second petition presumes that one knows of the status as such.

The problem is that in 1998 when B proceeded with the first petition Apprendi had not been decided so he could not have known of the grounds under which he might challenge his sentence. Only after Apprendi (2000) was decided did he raise the challenge (in the 2002 petition) alleging violation of Apprendi. This still does not excuse the failure to seek authorization, but is it so clear and obvious that a challenge the basis of which has not yet been “created” should have been foreseen, and therefore could be excused for not having been foreseen?

The following language from Burton might seem dispositive at first glance (however, consider that the 1998 petition was not a mixed petition because unexhausted grounds were not stated, so the option to withdraw was neither available nor sensible; B proceeded with the claims he had at the time. Only after Apprendi “intervened” was he able to raise the sentencing claim posed in the 2002 petition):

That court's ruling that Burton had a "legitimate
excuse," however, is inconsistent with the precise practice
we have explained governs in circumstances such as Burton's. The plurality opinion in Rose v. Lundy, 455 U. S.
509, 520.522 (1982), stated that district courts should
dismiss "mixed petitions" --those with exhausted and
unexhausted claims.and that petitioners with such
petitions have two options. They may withdraw a mixed
petition, exhaust the remaining claims, and return to
district court with a fully exhausted petition. We have
held that in such circumstances the later filed petition
would not be "second or successive." Slack v. McDaniel,
529 U. S. 473, 485.486 (2000).
Alternatively, prisoners filing mixed petitions may
proceed with only the exhausted claims, but doing so risks
subjecting later petitions that raise new claims to rigorous
procedural obstacles.

What am I missing?

Posted by: "Major" Mori | Jan 9, 2007 5:26:25 PM

Congress has provided for successive petitions based on retroactive new rules, 28 USC 2244(b)(2)(A), but you have to ask the Court of Appeals for an order to let you file under that exception first.

Posted by: Kent Scheidegger | Jan 9, 2007 6:05:15 PM

While Kent's point about the Respondent raising the issue in its brief is well taken, I think the high court still didn't follow exemplary protocol here, and really should have allowed the process to work. The Petitioner was still sand bagged.

The key point is that the court didn't grant cert on the issue upon which the case was decided. Given, as Kent notes, that five federal jurists had considered the issue and come to the opposite conclusion when it was raised below, and given that it was not an issue upon which cert had been granted, the Petitioner rightly could have ignored the issue in his own briefing because he thought that it was not properly within the scope of the issues that the high court was considering here.

A more fair course would have been to sua sponte expand the scope of the issues upon which cert was granted, call for supplementary briefing of those issues, and to indicate to the parties that oral argument might not proceed if it was clear from the briefing that subject matter jurisdiction was not present.

Why should the Court encourage parties to discuss matters beyond the scope of a cert grant in their briefs? For, that is the natural incentive that course of dealing with the subject matter jurisdiction question invites.

Posted by: ohwilleke | Jan 9, 2007 7:06:56 PM

This is indeed an odd ruling, procedure-wise. I am having trouble with what seems to have become the accepted wisdom: that SCOTUS didn't DIG because if it did so, then the rulings below would stand, despite the jurisdictional flaws. To which my answer is, well, so what if the decisions did stand? Yes, courts have an obligation to assure themselves of jurisdiction. But this was a completely insignificant case below. Burton had lost at every stage. If the Court had DIG'd, he would have lost nothing. It makes absolutely no sense for SCOTUS to have delivered a ten-page opinion explaining why there was no jurisdiction (it obviously wasn't that simple an issue), unless it really wanted to make some statement about the law.

On the other hand, it was a unanimous opinion. Hard to argue with that.

Posted by: bilbo | Jan 9, 2007 10:30:36 PM

Once the Supreme Court had gotten into the case, it made sense to issue the opinion. The decision provides clear guidance for practitioners and probably will make life a lot simpler for folks in the workaday world.

Had the court DIG'd then courts may have taken it as a signal that subject matter jurisdiction did lie in such cases.

Posted by: federalist | Jan 9, 2007 10:41:00 PM

The "Comments" all have the emPHAsis on the wrong sylLAble. In our view, the jurisdictional question is, and was, of no moment. The heart of this issue is that the Supremes simply did not truly wish to entertain the very issue on which they granted cert - whether the decision in Blakley should apply retroactively on collateral review.

And the reason seems clear. All parties know that a finding of applicable retroactivity would "open the floodgates" to litigation by virtually thousands of inmates demanding resentencing because their sentences were improperly enhanced - just as Justice O'Connor warned.

This was a shabby duck by our highest court and the only way to make it right is for a Blakely retroactivity case to be granted cert ASAP and then fast-tracked so as to avoid the very perception that the Court has created.

Paul Kurtz, Executive Director

Posted by: Paul Kurtz | Jan 10, 2007 7:35:59 AM

We filed a petition for certiorari on January 5th addressing Booker retroactivity, so the court has another vehicle before it to consider retroactivity issues. The case is Waksal v. United States.

Posted by: Chris | Jan 10, 2007 2:07:57 PM

Paul, your hypothesis requires that at least four justices wanted to reach the issue when they granted certiorari in June and that zero do seven months later. I find that extremely difficult to believe.

The most likely hypothesis on the known facts is that this was a cert. pool screw-up, pure and simple. The pool memo failed to advise the justices of a glaring jurisdictional problem in this case, despite its plain statement in the Brief in Opposition.

Posted by: Kent Scheidegger | Jan 10, 2007 7:14:51 PM

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