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June 22, 2010

Eleventh Circuit gives the "Great Writ" some notable life

A helpful reader alterted me to a "blockbuster of an Eleventh Circuit opinion that just came down" late yesterday and that give habeas review an equitable jolt. The procedural details of the ruling in Gilbert v. US, No. 09-12513 (11th Cir. June 21, 2010) (available here), are complicated, but this paragraph highlights why this ruling is so notable:

The government’s position, however, is that, despite the error in his sentence, Gilbert is without a legal remedy, his sentence must stand, and he must remain incarcerated. Although made in good faith and based upon its understanding of the law, the government’s statement at oral argument that Gilbert is entitled to no relief from an illegal sentence cannot be the law.  The common law tradition of the “Great Writ” cannot be so moribund, so shackled by the chains of procedural bars and rigid gatekeeping that this court is not authorized to grant relief to one who is “in custody in violation of the Constitution or laws or treaties of the United States.”  See 28 U.S. C. § 2241. Fiat Justitia, Ruat Coelum.[FN7]

[FN7] “Let right be done, though the heavens should fall.” Branch. Princ. 161.

June 22, 2010 at 11:28 AM | Permalink


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Souinds just like a USA, no you are spend the rest of the illegasl sentence, even though yov'e already been here too long....Thats the basic mindset....Nothing will change Federally until the DOJ and USA and Judges Like the one in the Rash?? guy from Iowa are gone...Good luck on that one, right..

Posted by: Abe | Jun 22, 2010 2:24:27 PM

"For federal sentencing purposes, the act of being a career offender is
essentially a separate offense, with separate elements (two felony convictions; for
violent felonies), which must be proved, for which separate and additional
punishment is provided. Gilbert remains in jail today because he was found guilty
of the “offense” of being a career offender."

Isn't this the essence of what Bruce Cunningham has been arguing? In any event, I've been tempted to join the S. Claus club but still have some faith in the judicial branch. The executive? Why would the executive branch even challenge this in the name of the "justice" department? That inspires utter contempt and temptation to join the rodsmith club, if not for some remnants of faith in the judicial branch..

Posted by: George | Jun 22, 2010 5:51:14 PM


" That inspires utter contempt and temptation to join the rodsmith club, if not for some remnants of faith in the judicial branch.."

thanks i think!

sorry my faith in the judicial branch died the day the u.s supreme court said you could be factually innocent and still be inprisoned becasue of a jury verdict!

what they have done in the decade or more since is just tossed dirt on the coffin of the dead body of another govt branch that has been destroyed in the rush to dictatorship that is still ongoing.

Posted by: rodsmith3510 | Jun 23, 2010 2:41:28 PM

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