During the Sotomayor confirmation battle, I mentioned more than once that I think more attention should be given to nominations to circuit court positions since those judges decide many more cases than the Supreme Court and, except for the miniscule percent of these cases that are reviewd by the Supreme Court, circuit court decisions are the final word in most cases. Thus, it goes without saying (but I'm going to say it) that circuit court judges have a tremendous impact on federal law, including habeas.
In this spirit, I wanted to discuss the pending nomination of Judge Gerard Lynch to the Second Circuit. The current status of his nomination is that it has been approved by the Judiciary Committee and is awaiting a vote from the full Senate. That vote has not yet been scheduled.
Obviously, the question for this blog is what kind of judge will Judge Lynch be in habeas cases? My initial take is that, from his background, it would seem that he would be pretty moderate in habeas cases, lying somewhere in the center. However, from his opinions as a district court judge, he does seem to be a little right of center in habeas cases.
My analysis is below the fold . . .
Let me start with his background, all of which is culled from the wikipedia entry for him., which in turn appears to be mostly taken from his bio on the Columbia Law School website.
Before becoming a federal judge, Judge Lynch spent a few years in the Southern District US Attorney's Office, eventually becoming chief of the appellate unit and later, chief of the criminal division. He served on several special prosecutor teams, including the Iran/Contra case, in which he represented the Government in appeal in the Oliver North case. He also has "extensive experience" in criminal defense in state and federal court. Judge Lynch has also spent many years as a professor at Columbia, teaching criminal law courses. He also has done some work with the ACLU and the NYCLU.
On paper, it's a pretty balanced background. He also has a great deal of expertise in criminal law cases. It would suggest that he will be pretty moderate in habeas cases, having seen it from all different sides.
President Clinton originally nominated Judge Lynch to be a Southern District Court judge back in 2000. He took the bench in May 2000. As a democratic appointee, the assumption is that he will be to the left on issues (for example, see this NYTimes article about how Obama's circuit court appointees may alter the balance in environmental cases).
That may be true about Judge Lynch in some areas. But there is no indication from his prior habeas decisions that this will be true in habeasland.
Since Judge Lynch has been on the bench for a few years, it allows us to examine his work in habeas cases. He has issued over 60 opinions or orders in habeas cases that appear on Westlaw. Did not have the energy to read all of them, but I have read a bunch. A few are pretty enlightening about his general stand in habeas cases.
Let me just say initially that his opinions are a joy to read. They are very well-written. I read a whole bunch of habeas decisions each week, and his opinions really stand out. Obviously, I don't always agree with what he's saying. But that doesn't take away from how well everything is written. He is obviously a great choice to be elevated to the circuit court from that perspective.
Turning to his decisions, the outlook for habeas petitioners is not encouraging. In the nine years that he has been a judge, he has yet to grant a habeas petition. At least, I was unable to find such a decision. I guess I could have overlooked it on Westlaw (doubtful) or maybe he granted relief in an unpublished opinion (unlikely). That means, approximately, 0 for 60. We saw that same thing with Sotomayor, who never authored an opinion at the district or appellate level granting a habeas petition. The caveat obviously is that, according to that recent study, the rate for habeas relief is less than 1%. With that percentage, it would take more than 100 cases before we would expect to see a habeas grant from any particular judge. Nonetheless, the habeas shutout is telling.
And we know of at least one case where he could have granted habeas relief but didn't. That case is Bailey v. Rivera, 07 Civ. 2181, 2007 WL 3120904 (SDNY Oct. 24, 2007). In that case, he rejected a claim that the New York persistent felony offender statute was unconstitutional under Blakely. At the time of the decision, two other federal judges had gone the other way on the issue. Thus, there was well-reasoned precedent by two highly respected federal jurists concluding that the statute was unconstitutional. Those are the Portalatin and Washington cases. Judge Lynch, the first Southern District Judge to speak on the matter after Washington was decided, did not follow it. He obviously could have, but didn't. To be fair, several other judges have followed Lynch's lead since that time. In fact, at this point, no other federal judge has followed Washington and Portalatin and, overall, more DJ's have found the statute constitutional than have found it unconstitutional. So I am not saying that Judge Lynch went outside the mainstream or even went out of his way to rule against a habeas petitioner. Nevertheless, it does provide some evidence that he wouldn't be a particularly pro-habeas petitioner judge.
One other thing about Bailey. And here comes the disclaimer: I am the attorney in the Washington case. I think it is inappropriate to use this blog to advocate for any of my clients. For that reason, I have refrained here from tackling the reasoning of Bailey head on and I have generally refrained from getting into the whole persistent felony offender statute issue on the blog. If you want to see a more detailed discussion of these issues, you are more than welcome to read the Second Circuit briefs. I will e-mail pdf files of those briefs to anybody who is interested.
Moving off of Bailey, an even more interesting case study that reveals the same troubling trend is the decision in Rosa v. McCray, 03 Civ. 4643, 2004 WL 2827638 (SDNY Dec. 8, 2004). In that case, a different DJ granted a habeas petition in April 2004 on the ground that the petitioner's constitutional rights based on a Miranda violation. The original DJ issued what's commonly known as a conditional grant of habeas -- the convictions would be dismissed unless petitioner was retried within 60 days from the order. Respondent's request for a stay was denied.
Seven months later, the case was pending before the Second Circuit. More important, the petitioner was still in custody and no re-trial had occurred.
Petitioner moved in district court for immediate release. The case was administratively reassigned to Judge Lynch. The case really did present a tricky procedural situation and there wasn't much caselaw to provide direction. Judge Lynch deined the request in a well-reasoned and balanced discussion.
But that was the second half of the opinion. The first half of the opinion was a little problematic. The judge spent the first half of the opinion explaining why the original district judge was wrong in granting habeas relief. There are at least two problems with this. First, apart from being a little disrespectful to the prior district judge, it was irrelevant to the motion, which even the judge acknowledged.
Second, the case was pending before the Second Circuit. It had already been argued and the parties were awaiting decision. Now there was an opinion in the same case, criticizing the opinion and order that was before the Second Circuit. There really is no doubt that the Second Circuit did end up seeing the opinion soon after it was issued, which would have been before the panel issued its decision (which was not until January 27, 2005). There is a chance that the decision could have influenced the outcome. Small, but it's possible. The even greater problem is that petitioner was left with no real mechanism to challenge the new opinion in the Second Circuit. I doubt it was an appealable order and, even if it was, there is no guarantee that it would get before the panel before it issued its opinion. So it was pretty unfair to the petitioner.
The Second Circuit ended up reversing the original DJ decision. See Rosa v. McCray, 396 F.3d 210 (2d Cir. 2005). So Judge Lynch was not out of the mainstream in criticizing the earlier opinion. However, the interesting part is that there was a dissent, which agreed with the DJ on the Miranda issue. That means that there was strong and secure ground on which to rule in favor of the petitioner in this case. But Judge Lynch would not have done it. That resembles the situation in Bailey. It once again does suggest a judge who will not be particularly pro-petitioner at the appellate level.
In the end, despite his balanced background, I anticipate that Judge Lynch will be slightly to the right in habeas cases based on his prior opinions. Maybe as an appellate judge, when he has more of an opportunity to shape the law, he will be a moderate, or, even better, slightly to the left. He is a Democratic appointee after all. But I wouldn't count on it. At least his opinions will be good reads.
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