« Ruling 7-2 in favor of federal defendant, Supreme Court in Taylor rejects broad reading of "crime of violence" for applying 924(c) sentence enhancement | Main | US Sentencing Commission releases another report on "Length of Incarceration and Recidivism" »

June 21, 2022

Ruling 5-4 against state prisoner, SCOTUS rules federal court misapplied All Writs Act in habeas proceeding

In a technical (and seemingly little) ruling, the Supreme Court reversed a procedural order in Shoop v. Twyford, No. 21-511 (S. Ct. June 21, 2022) (available here). The opinion for the Court was authored by Chief Justice Roberts, and it starts and ends this way:

The All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §1651(a). In this case, the District Court ordered the State to transport a prisoner in its custody to a hospital for medical testing.  The prisoner argued that the testing could reveal evidence helpful in his effort to obtain habeas corpus relief.  The question is whether the District Court’s order is “necessary or appropriate in aid of” the federal court’s resolution of the prisoner’s habeas case. We hold that it is not, and therefore reverse....

A transportation order that allows a prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal court’s adjudication of a habeas corpus action, 28 U.S.C. §1651(a), when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief.  Because the District Court entered such an order despite Twyford’s failure to make the required showing, the judgment of the Court of Appeals affirming that order is reversed and the case is remanded for further proceedings consistent with this opinion.

Justice Breyer authored the main dissent, which Justices Sotomayor and Kagan joined. It starts this way:

The Court today reviews a District Court’s pretrial order requiring Ohio “to transport a prisoner in its custody to a hospital for medical testing” in order to develop evidence to support the prisoner’s habeas petition.  Ante, at 1. The Court holds that the District Court’s order did not comply with the All Writs Act because the District Court failed to consider whether the evidence sought could be admissible in the habeas proceeding.  See ante, at 9–10.  I would not reach the merits of that question because I do not believe that the Court of Appeals had jurisdiction to hear the State’s interlocutory appeal. I respectfully dissent.

Justice Gorsuch authored a solo dissent, which runs only two paragraphs and merits reprinting in full:

The Court granted review to decide whether and under what circumstances a federal district court may order a State to transport a prisoner to a hospital for testing. Later, however, it became clear a potential jurisdictional defect threatened to preclude the Court from reaching that question.  The District Court’s transportation ruling was an interlocutory order, not a final judgment.  To address its merits, the Court would first have to extend the collateral order doctrine to a new class of cases.  See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545–547 (1949). In a terse footnote today, the Court does just that.  Ante, at 5, n. 1.

Respectfully, I would have dismissed this case as improvidently granted when the jurisdictional complication became apparent. We did not take this case to extend Cohen. And this Court has repeatedly “admoni[shed]” other courts to keep “the class of collaterally appealable orders . . . ‘narrow and selective.’” Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 113 (2009).  If anything, this call for caution “has acquired special force in recent years with the enactment of legislation designating rulemaking . . . as the preferred means for determining whether and when prejudgment orders should be immediately appealable.” Ibid.

June 21, 2022 at 11:00 AM | Permalink


This opinion is almost an afterthought given Shinn.

If Shinn and this opinion are followed by the district courts, 2254 review is effectively just an appeal from the state courts with great deference given to state courts. Theoretically, this should reduce the time that cases are pending in federal court after the state review is done, but I am dubious that the process will get shorter.

Posted by: tmm | Jun 21, 2022 12:08:54 PM

I have to respectfully disagree that 2254 is now "effectively just an appeal." Many states have some mechanism for presenting new evidence in a successive state post-conviction petition. Texas made this point in its amicus in support of review in Ramriez/Jones, and Ramirez/Jones did not overturn Rhines. It should not affect the states that, unlike Arizona, recognize state PCR counsel's ineffectiveness as a grounds for considering a second-in-time petition.

Posted by: John | Jun 21, 2022 12:33:22 PM

John, I have to respectfully disagree with your response.

Your critique is based on state avenues for successive review. But state court action is not federal court action under Rule 2254. Rhines allows a pause in Section 2254 proceedings to allow state court proceedings on additional claims. But ultimately, the proceedings return to federal court to permit the federal court to review the decisions of the state courts on those claims.

My comment is based on what happens when the case gets back to federal courts. Whether the claim was raised in the initial state proceedings or in successive state proceedings, Shoop (and the earlier decision in Cullen v. Pinholster) dictate that the federal court is to review the state court proceedings on the record with no new evidence. Shinn all but eliminates the ability to present evidence on claims that were not raised in state court. Given the deference to the factual and legal findings of the state courts that sounds like appellate review (probably even more deferential than appellate review) to me. In my mind, appellate review has four key features: 1) it is on the record; 2) new evidence is rarely if ever considered; 3) only issue is whether the lower court made legal or factual error; and 4) significant restrictions on claims that were not presented or decided by the lower court. Under these new cases, Section 2254 now has all of those features.

Posted by: tmm | Jun 22, 2022 10:23:39 AM

So what happens when, say, the state PCR record meets 2254(d)'s requirements? Assume there was no hearing in state court and instead evidence proffered for what that hearing would show. Relief granted in federal habeas, even if the state thinks it can undermine the credibility of the proffered state court evidence?

Posted by: John | Jun 22, 2022 1:17:45 PM

I should add that it looks like we agree that counsel in 2254 proceedings would, even after Shinn, be required to investigate potential claims to present after a Rhines stay. That obligation--investigation--is pretty foreign to appeals

Posted by: John | Jun 22, 2022 1:19:18 PM

The investigation would be, primarily, for filing the claims in state court. Otherwise, you are in the realm of cause and prejudice for claims that were not presented in state court. But even on appeal, there is an investigation as to what claims to raise on appeal. But, the investigation by counsel (within the year to file the 2254 petition) does not alter what the federal court can do with the petition.

Looking at the realms of possibility if the state courts denied the hearings on the claims, I am seeing three rulings.

First, the state court finds that the pcr motion was inadequate under the state rules. If that is the ruling, then you are in Martinez land having to show IAC by motion counsel to overcome the default. I don't think that the information attached to the motion to get a hearing counts as evidence under Shinn or Pinholster. Basically, it was not ever actual evidence. While an offer of proof in the underlying trial is part of the record for federal habeas as a claim of error in excluding that evidence, I am not seeing the same as being true for evidence excluded from the pcr hearing as the cases are pretty clear that claims of error in the pcr process are not valid federal habeas claims.

Second, the state court reaches a ruling on the merits and rejects the proffered evidence is not credible. That is a finding that should get deference on federal habeas review.

Third, the state court does not address credibility but finds the proffered evidence to be insufficient to meet the burden of proof. If the state takes that position in the state courts, I think that it is inviting problems in federal habeas because it loses the deference that it gets on factual findings. But you still get deferential review on the legal conclusions of whether that evidence, if true, overcomes the presumption of competence or demonstrates prejudice.

Section 2254 implictly assumes that the need to present evidence to make a prima facie case is limited to the inmate. It is unclear what happens if the state court record shows that the state courts erred by not granting relief. I only did habeas for about six years, but I am not recalling any case in which we wanted to add additional evidence into the record to combat a state court record on which defendant was entitled to relief.

Posted by: tmm | Jun 22, 2022 1:46:37 PM

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