« An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration | Main | SCOTUS issues short unanimous opinion clarifying prisoner filing limits of PLRA »

June 8, 2020

Justice Sotomayor flags due process concerns with how Eleventh Circuit considers inmate efforts to file second/successive habeas petition under AEDPA

The US Supreme Court has kicked off another work week with another anticlimactic order list this morning.  The Court granted cert only on a procedural immigration issue, while failing to take any action on an array of Second Amendment and qualified immunity cases that it has been sitting on for a number of weeks.  Still, there are some in crumbs for hard-core habeas fans thanks to a statement on the denial of cert from Justice Sotomayor concerning the process the Eleventh Circuit uses to consider and resolve requests from inmates seeking to file a second or successive habeas petitions under the Antiterrorism and Effective Death Penalty Act.  Here are parts of the start of Justice Sotomayor's six-page statement to provide a flavor of her concerns:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes several restrictions on inmates seeking to file a second or successive habeas petition.... But an inmate seeking such authorization from the Court of Appeals for the Eleventh Circuit faces even greater hurdles.
Unlike its sister circuits, the Eleventh Circuit has interpreted the relevant statutes to mandate an authorization decision within 30 days, leaving the court little time to consider a complex inmate application.  In re Williams, 898 F.3d 1098, 1102 (2018) (Wilson, J., concurring).  Under Eleventh Circuit rules, the applicant must confine his or her entire legal argument to a form on which “[f]ew prisoners manage to squeeze more than 100 words.” 918 F.3d 1174, 1198 (2019) (Wilson, J., dissenting from denial of reh’g en banc).  That limited form is the only submission that the court typically accepts: The Government seemingly “never files a responsive pleading,” and the court never grants oral argument. Ibid. Surprisingly still, this perfunctory process affects future claimants too, and not only those who find themselves in the second or successive petition posture....

These factors make out a troubling tableau indeed.  Most importantly, they raise a question whether the Eleventh Circuit’s process is consistent with due process.  The Eleventh Circuit has not yet appeared to address a procedural due process claim head on, so I will leave it to that court to consider the issue in the first instance in an appropriate case.  In the meantime, nothing prevents the Eleventh Circuit from reconsidering its practices to make them fairer, more transparent, and more deliberative.

June 8, 2020 at 09:51 AM | Permalink


Given the critique in the opinion, I looked at the Eleventh Circuit forms. While not perfect, the forms used the the Eleventh Circuit (one form for state convictions and one form for federal convictions) do not look as bad as the opinions describe considering the limitations imposed by AEDPA itself. They do require the inmate to be concise about the claim (which should be done in one or two sentences anyhow) and the key facts supporting the claim. The forms do require the inmate to identify the "new rule" or "new evidence." But, for those asserting new evidence, it gives them over a page per claim to detail the new evidence and why it meets the standard. (While the space for the statement of the claim might, typically, result in less than 100 words, it's apparently not intended to be a lengthy legal argument, but rather a simple statement. E.g., my lawyer was ineffective for not calling my aunt to testify as to an alibi defense or the trial court erred by not giving an instruction on X or the trial court erred in denying my motion to suppress statements as I invoked my right to counsel. My state does not use interactive forms, but we use roughly the same format of separating the legal claim from the facts and my experience is that both pro se inmates and attorneys tend to use less than 100 words to state the legal claim.)

Admittedly, there might be a case in which the original evidence was moderately strong but there is a lot of new evidence that creates a persuasive case of actual innocence. But for most cases, the form seems to serve the function of quickly identifying whether the inmate has "made a prima facie case" demonstrating that they meet the criteria for filing another petition in the trial court.

As to responses and oral argument, it makes logical sense to take the position that -- if an inmate has made sufficient allegations to require a response or argument -- the court should grant the application and allow the response and argument to take place in the district court. And if the application is clearly insufficient, why should the court require government attorneys to respond or schedule argument especially in light of the (admittedly non-jurisdictional) statutory requirement that the appellate court rule the application within thirty days (which apparently even the expedited procedures of the Eleventh Circuit often fail to meet). Given the number of times that I had to file responses to repetitive applications for leave to file successive petitions, the Eleventh Circuit's approach seems an attractive alternative.

Posted by: tmm | Jun 8, 2020 1:11:09 PM

TMM: Your argument doesn't address that the 11th Circuit takes these rulings on conclusory pro se pleadings and then uses the rule of law announced to bind future merits panels on the legal issue. And they are often wrong. The practice is problematic in itself, given the way the 11th Circuit applies the prima facie standard. But when they then publish these short shrift opinions (with no possibility of en banc review or cert petition) and bind future panels so that the arguments on the legal issue cannot be developed and adequately heard, they deny due process to all litigants trying to raise the issue. It's just wrong.

Posted by: defendergirl | Jun 8, 2020 4:02:54 PM

TMM: If the issue is straightforward and non-novel enough to justify disposing of on the merits after a few hundred words of briefing, then it doesn't justify a published opinion.

Posted by: Jason | Jun 9, 2020 12:00:47 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB