Yesterday, I looked at the circuit court opinions that Judge Sotomayor authored. I came to the conclusion that, while she has yet to author an opinion that granted habeas relief, she has, more often than not, interpreted the AEDPA in a way that can be looked at as favorable for habeas petitioners. Her circuit court opinions provide ammunition for both sides in the debate, but generally show that she will probably reside somewhere to the right of Souter on the political spectrum in habeas cases.
What do her district court opinions show?
As I mentioned yesterday, I was able to find 16 published habeas decisions. She ruled against the habeas petitioner in every single one. This is not to say that these are her only habeas opinions. There could be some unpublished decisions, including one that could have granted habeas relief. But that's pretty unlikely. When a district court judge grants habeas corpus, the judge is typically going to be writing a detailed opinion that thoroughly addresses every aspect of the claim. The judge is going to want to protect herself from getting reversed, which will require that every part of the analysis be solid. Based on the amount of energy expended on such cases, the judge will request that the opinion be published as it will typically be an opinion that the judge is proud of. Further, a habeas grant is often big news and can be a landmark, defining opinion, and the law reporters (who I believe are the ones who ultimately decide whether to publish an opinion) are aware of all of this. They know that a grant is a big deal and will usually publish it, particularly when a judge requests that it be published.
Thus, I believe it is safe to say that the lack of a published opinion in which Sotomayor granted habeas relief means that she never did.
However, she was only a district court judge for about 6 years. Considering the fact that we have recently learned that habeas relief is granted less than 1 percent of the time, the fact that Sotomayor did not grant habeas relief in those 6 years (particularly because she only seemed to have been assigned to less than 20 cases) is not really that suprising or revealing. When added together with her 12 other habeas denials at the circuit level, it becomes a bit more revealing. But today we are looking at the district court decisions.
Is there anything else in these decisions, besides the outcome, that is of value here?
Actually, there is and it demonstrates that she is clearly not a liberal, in any sense of the word, in habeas cases.
There are two important things that I can see to support this. First, as Kent Scheidegger stated in his analysis (discussed in my previous post), Sotomayor ruled against a habeas petitioner on a claim soon after a different district court judge in the same district had ruled in the petitioner's favor. In a case called Rodriguez, Judge Sotomayor held that the newly imposed one-year statute of limitations created by the AEDPA (see FAQ 2 and 6) did not violate the Suspension Clause. I am assuming that everybody knows what the Suspension Clause is (Okay, it says, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."). Another judge had ruled right before Rodriguez that the statute of limitations did violate the Suspension Clause.
If Sotomayor was a liberal activist judge, she would have leaped in line behind this other judge and found this part of the AEDPA to be unconstitutional. However, she did not and ruled against the habeas petitioner. Notably, the Second Circuit affirmed Sotomayor's opinion "for substantially the reasons stated" in her opinion.
There is another subtle aspect of her habeas decisions that demonstrate that she is far from a liberal. It also has to do with the statute of limitations. Prior to the AEDPA, there was no time limit on filing a habeas petition. It could be filed years and years after a conviction became final. The AEDPA changed that and instituted a one-year statute of limitations for filing a habeas petition. The one-year statute of limitations could easily be applied to those petitioners whose convictions had not yet become final.
But what about those petitioners whose convictions had already become final? Especially those whose one-year time limit had run out long before the AEDPA was based.
When faced with this issue, most circuit courts followed the typical path of granting petitioner one year from the date that the AEDPA became effective to file their petitions. It was a reasonable, workable way of approaching the situation.
Of course, the Second Circuit did not do it that way. Instead, in a case called Peterson, the Second Circuit concluded that these habeas petitioners would only be granted a "reasonable time" to file a petition after the effective date of the statute. In other words, a petition would be considered timely if it was filed within a reasonable time of the effective date of the statute. Of course, the Second Circuit did not define what would be reasonable. Instead, the case apparently gave the district court's a wide range of discretion in determining what would be a reasonable time on a case by case basis.
This proved to be a little arbitrary and unfair. The Second Circuit eventually came to its senses and, without officially overruling itself, held in a case called Ross that any petition filed within one year of the effective date of the statute was timely.
But in between these two decisions, the district court judges in the Second Circuit issued dozens and dozens (if not hundreds) of opinions on the issue of whether a petitioner had filed his petition within a reasonable time after the AEDPA became effective.
Because this was a discretionary decision, it is easy to see that a liberal judge would be very willing to view a reasonable time broadly and allow a petitioner to pursue his petition in most situations. At the same time, a more conservative judge would be eager to read a reasonable time very narrowly and dismiss many petitions as time-barred. Obviously, these labels are oversimplifying it a little. But just a little. Since the discretion was not carefully defined by the Second Circuit, it did give district court judge's a lot of power to decide what's reasonable. When discretionary authority is that broad, it can allow a judge's political preferences to break through.
And guess which camp Sotomayor fell into? My review showed that she dismissed at least four as untimely, saying that they had not been filed a reasonable time after the effective date, even though they had been filed within one year of the effective date. While this is not a large number, it is important to note that these four were all decided within one week of one another (as well as one more also dismissed as time-barred, but had been filed over a year after the effective date). Thus, it appears that she simply swept these out the door in rapid succession. And there are no opinions out there to counter balance those in which she found a petition to be filed in a "reasonable time."
In her defense, most judges in the Second Circuit were eager to dismiss these petitions as untimely under Peterson. In an opinion she wrote in Albert (which was eventually reversed after Ross), she listed many, many cases that dismissed petitions filed within one year of the effective date of the statute. So she was not alone. Nevertheless, a liberal activist judge would have exercised her authority in a different way. Instead, she was well within the mainstream, federal judge discretionary behavior.
It is also important to note that, although Albert was eventually reversed, the decision itself is thoroughly reasoned. She obviously reviewed many, many opinions to see precisely how other judges had been addressing the "reasonable time" conundrum.
And that seems to be typical of Sotomayor.
So, once again, Sotomayor reveals herself, in her district court habeas opinions, to be a legal technocrat -- she follows the law and precedent. She looks to other judges for guidance, as judges should do. She is nowhere near a liberal judicial activist. And, once again, she never ruled in favor of a habeas petitioner. There isn't anything here for her detractors to use as ammunition.
What do her district court opinions show?
As I mentioned yesterday, I was able to find 16 published habeas decisions. She ruled against the habeas petitioner in every single one. This is not to say that these are her only habeas opinions. There could be some unpublished decisions, including one that could have granted habeas relief. But that's pretty unlikely. When a district court judge grants habeas corpus, the judge is typically going to be writing a detailed opinion that thoroughly addresses every aspect of the claim. The judge is going to want to protect herself from getting reversed, which will require that every part of the analysis be solid. Based on the amount of energy expended on such cases, the judge will request that the opinion be published as it will typically be an opinion that the judge is proud of. Further, a habeas grant is often big news and can be a landmark, defining opinion, and the law reporters (who I believe are the ones who ultimately decide whether to publish an opinion) are aware of all of this. They know that a grant is a big deal and will usually publish it, particularly when a judge requests that it be published.
Thus, I believe it is safe to say that the lack of a published opinion in which Sotomayor granted habeas relief means that she never did.
However, she was only a district court judge for about 6 years. Considering the fact that we have recently learned that habeas relief is granted less than 1 percent of the time, the fact that Sotomayor did not grant habeas relief in those 6 years (particularly because she only seemed to have been assigned to less than 20 cases) is not really that suprising or revealing. When added together with her 12 other habeas denials at the circuit level, it becomes a bit more revealing. But today we are looking at the district court decisions.
Is there anything else in these decisions, besides the outcome, that is of value here?
Actually, there is and it demonstrates that she is clearly not a liberal, in any sense of the word, in habeas cases.
There are two important things that I can see to support this. First, as Kent Scheidegger stated in his analysis (discussed in my previous post), Sotomayor ruled against a habeas petitioner on a claim soon after a different district court judge in the same district had ruled in the petitioner's favor. In a case called Rodriguez, Judge Sotomayor held that the newly imposed one-year statute of limitations created by the AEDPA (see FAQ 2 and 6) did not violate the Suspension Clause. I am assuming that everybody knows what the Suspension Clause is (Okay, it says, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."). Another judge had ruled right before Rodriguez that the statute of limitations did violate the Suspension Clause.
If Sotomayor was a liberal activist judge, she would have leaped in line behind this other judge and found this part of the AEDPA to be unconstitutional. However, she did not and ruled against the habeas petitioner. Notably, the Second Circuit affirmed Sotomayor's opinion "for substantially the reasons stated" in her opinion.
There is another subtle aspect of her habeas decisions that demonstrate that she is far from a liberal. It also has to do with the statute of limitations. Prior to the AEDPA, there was no time limit on filing a habeas petition. It could be filed years and years after a conviction became final. The AEDPA changed that and instituted a one-year statute of limitations for filing a habeas petition. The one-year statute of limitations could easily be applied to those petitioners whose convictions had not yet become final.
But what about those petitioners whose convictions had already become final? Especially those whose one-year time limit had run out long before the AEDPA was based.
When faced with this issue, most circuit courts followed the typical path of granting petitioner one year from the date that the AEDPA became effective to file their petitions. It was a reasonable, workable way of approaching the situation.
Of course, the Second Circuit did not do it that way. Instead, in a case called Peterson, the Second Circuit concluded that these habeas petitioners would only be granted a "reasonable time" to file a petition after the effective date of the statute. In other words, a petition would be considered timely if it was filed within a reasonable time of the effective date of the statute. Of course, the Second Circuit did not define what would be reasonable. Instead, the case apparently gave the district court's a wide range of discretion in determining what would be a reasonable time on a case by case basis.
This proved to be a little arbitrary and unfair. The Second Circuit eventually came to its senses and, without officially overruling itself, held in a case called Ross that any petition filed within one year of the effective date of the statute was timely.
But in between these two decisions, the district court judges in the Second Circuit issued dozens and dozens (if not hundreds) of opinions on the issue of whether a petitioner had filed his petition within a reasonable time after the AEDPA became effective.
Because this was a discretionary decision, it is easy to see that a liberal judge would be very willing to view a reasonable time broadly and allow a petitioner to pursue his petition in most situations. At the same time, a more conservative judge would be eager to read a reasonable time very narrowly and dismiss many petitions as time-barred. Obviously, these labels are oversimplifying it a little. But just a little. Since the discretion was not carefully defined by the Second Circuit, it did give district court judge's a lot of power to decide what's reasonable. When discretionary authority is that broad, it can allow a judge's political preferences to break through.
And guess which camp Sotomayor fell into? My review showed that she dismissed at least four as untimely, saying that they had not been filed a reasonable time after the effective date, even though they had been filed within one year of the effective date. While this is not a large number, it is important to note that these four were all decided within one week of one another (as well as one more also dismissed as time-barred, but had been filed over a year after the effective date). Thus, it appears that she simply swept these out the door in rapid succession. And there are no opinions out there to counter balance those in which she found a petition to be filed in a "reasonable time."
In her defense, most judges in the Second Circuit were eager to dismiss these petitions as untimely under Peterson. In an opinion she wrote in Albert (which was eventually reversed after Ross), she listed many, many cases that dismissed petitions filed within one year of the effective date of the statute. So she was not alone. Nevertheless, a liberal activist judge would have exercised her authority in a different way. Instead, she was well within the mainstream, federal judge discretionary behavior.
It is also important to note that, although Albert was eventually reversed, the decision itself is thoroughly reasoned. She obviously reviewed many, many opinions to see precisely how other judges had been addressing the "reasonable time" conundrum.
And that seems to be typical of Sotomayor.
So, once again, Sotomayor reveals herself, in her district court habeas opinions, to be a legal technocrat -- she follows the law and precedent. She looks to other judges for guidance, as judges should do. She is nowhere near a liberal judicial activist. And, once again, she never ruled in favor of a habeas petitioner. There isn't anything here for her detractors to use as ammunition.
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