Habeas Corpus Blog

Habeas Corpus - Happy Constitution Day!

Today is Constitution Day!  I am going to celebrate by re-posting the first post I wrote about Constitution Day back in 2009:

On September 17, 1787, the Constitution was signed.

The right to seek a writ of habeas corpus is one of the few affirmative grants of individual rights that appear in the Constitution.  I will pull out my pocket guide to the Constitution and quote Article I, Section 9:

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.

I never really understood the capitalization pattern in that clause.

Anyways, it seems a little less than coincidental that the anniversary of the signing of the Constitution falls in the same week that the Magna Carta exhibits opened.  Someone was thinking ahead.

Just as I mentioned in the Magna Carta post, this blog does kind of owe its existence to the Constitution, too.  I guess I should also give a shout out next week on the anniversary of the passing of the Judiciary Act of 1789 (September 24, 1789), as well as on the anniversary of the date when the Bill of Rights was passed (December 15, 1791) and the 14th Amendment (July 28, 1868).

Now I believe I have covered everything.  Or should I also include the original date that 28 USC 2254 (June 25, 1948) came into existence?  And April 24, 1996, the date when the AEDPA became effective?

Okay, that's enough.  I'll stop there.

Habeas Corpus - The Mystery of the Relist

Reader AS directed me over to a post at the Volokh Conspiracy that discusses cert. petitions that have been "relisted" in the Supreme Court.  Several of these are habeas cases, including a case called Williams v. Hobbs, that I am going to talk about more in a second.

But before I mention anything about these specific "relisted" cases, I actually thought I'd dig into what exactly it means for a case to be "relisted."  This really is advanced Court watching stuff.  On one level, it's pretty apparent what it means - the cert. petition has been added to the list for an upcoming conference after the Court did not act on it when it was submitted to a prior conference. 

But there is far more to it than that.  I was able to dig up this 1995 article in the deepest corner of the internet that does a fairly good job of explaining the history of the "relist," how a "relist" happens, and why.

"Relisting" appears to have begun in the 1970's.  According to the article, "Any justice for any reason at any stage of the Court's decisional process may have a case held over until the Court's next conference.  Repeated requests either by the same or different justices are permitted."

In the past, it was believed that the main purpose of the relist was for a Justice to bide some time to try and gain enough votes for a cert. grant.  Or, maybe, I guess, to try and convince other judges who want to grant cert. to change their minds.  Additionally, the relist can be used to gain some time to write a dissent to a denial of cert.  Another reason for a relist is to gather more papers in the case.  Or a case could be held over because there are other cases in the pipeline raising similar issues and the judges want to hold onto a petition to let those other cases ripen.

Aside from these, there is now one other really important reason for the relist - the summary reversal.  Under the Roberts Court, the number of summary reversals clearly has increased, and that was especially true last term.

A good example from last term is the case of Sears v. Upton.  It was relisted numerous times.  It was relisted so many times I wonder if it was some kind of record.  In the Volokh Conspiracy post, it suggests that, as a case gets relisted more times, it can be expected that there will either be a dissent from a denial of cert. or a summary reversal.  E.g., Sears ended up as a summary reversal.

So a number of relists can indicate that the Court is preparing a substantive summary reversal.  That's a big deal.

At the other end, in some situations, it never becomes clear why a case got relisted.  For example, last term a case called Ryan v. Libberton also got relisted.  However, after the relist, cert. was denied without a dissent.

One thing to watch for when there has been a relist is whether the Court asks for the lower court record.  That is a strong indication that something is happening.  That happened in Sears.

So what does it all mean?  Well, the relist is a real part of the Court's practice.  If a case gets relisted once, it can mean a host of different things, ranging from a summary reversal to nothing more than a cert. denial.  Repeated relists probably means that something substantive is happening in the case. 

One big problem with relists, though, is that they aren't listed anywhere, as far as I know.  It takes close Court watchers (like those at the Volokh Conspiracy) to catch them.  And that takes (a) a lot of knowledge about what petitions are currently pending and (b) a bunch of word-of-mouth.

And I also have one other question: does a relist necessarily have to happen before a dissent from denial or a summary reversal occurs?  That I can't say. And does a case that gets relisted automatically get put on the list for the next conference?  I also can't say.

What brings me to ask these things is a case I have talked about around here before: Maples.  According to the Court's docket, that case was distributed for the long conference on September 27 and then  . . . nothing.  No decision, no request for the record, no relist (even though there has been two conferences afterwards).  It's safe to say that something is probably happening in that case.  But there has been no official relist.  Without a relist, can it be a summary reversal of a dissent from denial?  I just don't know.

Of course, it would seem that it has to get relisted at some point.  The next conference is October 29, so maybe something will happen before then.  And, as I look at the docket in Sears, there was nearly a month-long gap between its original conference (March 19) and the relist (April 16).  I don't know if there were any conferences in between the first one and the second one in Sears.  That is an active time for the Court, but there is also a break in conferences around Easter.  So I can't say either way. But maybe, like Sears, Maples will be relisted after a gap in time. 

The big difference between the two is that the Court asked for the record in Sears but not in Maples.  Does that mean we are looking at a dissent from a denial of cert. as opposed to a summary reversal?  Once again, I have no idea.

Another possibility is that they are just holding Maples pending action in some other case.  But I don't know which case that could be.  But still a possibility.

It's kind of fun to speculate about these things.  I guess that's the true joy of the mystery of the relist.

Since this post is going on much longer than expected, let me move my discussion of the current relists below the fold . . .

Habeas Corpus - Good for Democracy

Google directed me towards this odd post entitled, "When 'The Nine' Overrule the Ninth: O'Scannlian ponders 10 years of reversals."

Apparently, Judge O'Scannlain, who sits on the Ninth Circuit, is a lion among conservatives.  I haven't done too much research, but he is a Reagan appointee and his most famous (or notorious) recent judicial act seems to have been joining the majority in concluding that an officer did not use excessive force when he tasered a pregnant woman.

The post is about a recent talk he gave at Harvard Law School (he's an alum) at which everyone basically celebrated the fact that the Supreme Court has overruled the Ninth Circuit so many times over the past ten years.  The judge pointed out that this was particularly true in habeas cases.  He said that, "'It seems that at least once every term, the Supreme Court has to remind us about the proper standard of review in habeas proceedings" under the AEDPA.  He suggested that, in not following AEDPA guidelines, the Ninth Circuit was "abusing its authority of constitutional review."  Strong words for what has become an easy target.

But the part I liked best was the question and answer session at the end of the post.  In particular, the first question, which is just so fevered that it sounds as if it is right out of a Glenn Beck rally:  "What do you say to your left-leaning colleagues who argue that their disagreement with the Supreme Court is good for democracy?"  Yes, that's a rallying cry I hear every day from liberal judges: Let's defy the Supreme Court to promote democracy!  Of course, I wasn't able to find anything remotely resembling this logic coming out of the mouths of any actual left-leaning judges (a group on the verge of extinction).  It only seems to appear on right-wing websites.

Anyways, O'Scannlian handled the question well with a very vanilla answer about "predictab[ility]."

Habeas Corpus - The 500

Speaking of Judge Weinstein, I was recently perusing around the far corners of the internet for habeas-related stuff when I came across Judge Weinstein's "Report on 500 Habeas Corpus Cases."

It's really a crazy chapter in habeas corpus history.

After the passage of the AEDPA, the federal courts were inundated with habeas petitions.  Yes, it's ironic that a statute meant to limit habeas relief actually resulted in a glut of petitions.

The flood of petitions resulted in a backlog of over 800(!) petitions in the EDNY.  In 2003, Judge Weinstein bravely volunteered to clear the backlog almost all on his own and 500(!) petitions were reassigned to him for disposition.  During that year, the judge decided all of them.  All 500 petitions.  To put that into context - we see, on approximate average, about 12 decisions a week in the district courts.  That makes about 300 decisions a year.  And that's for all four districts combined.  Judge Weinstein pumped out 500 in a year.  All by himself!  And I am not sure of the exact time frame, but it appears to have been even shorter than a year.  More like 9 months.  Just amazing.  Thank goodness I wasn't blogging back then -- I wouldn't have had time to keep up.

What happened to the 500?  The judge granted habeas relief in 9 of the 500 -- 1.8%.  That's less than the assumed percentage from last year -- 10 grants in approx. 312 (12*26) cases or 3.2%.  But not much lower.  And I am guessing the % last year is probably lower than 3.2 in actuality (I can't say that I saw every decision, but I probably did see every grant). 

Otherwise, 380 of the 500 were dismissed as lacking merit.  42 were dismissed as time barred.  And 99 were dismissed for various other non-substantive reasons (i.e. mixed petition, failure to prosecute, mootness, consolidation, reassignment). 

At the same time, 68 certificates of appealability were granted.  68!  We saw 10 last year in the district courts.  I am guessing that number caused some headaches up at the Second Circuit in 2003.

His report is pretty interesting.  He makes a bunch of recommendations for how the court should dispose of habeas petitions in the future.  A lot of these are administrative and I don't really know if they were implemented.  But as for the judges, he urged that the petitions be decided quicker.  I haven't been paying too close attention to dates in the decisions, but I think it's safe to say that the EDNY judges aren't quite following that recommendation.

One other thing I want to note about the report is that, attached as an exhibit, was a document entitled "Habeas Corpus Training Materials."  I have read through it.  It's not bad.  I remember having an objection here or there as I went through (I don't think I liked the presentation of the exhaustion & procedural bar sections).  But it's not a bad place to start on a lot of habeas/substantive criminal law topics. 

And, as a practical matter, it's probably a good idea to review it.  The manual indicates that the manual was "well-received" inside chambers.  It says that, "Clerks in New York and Connecticut reported the early editions to be quite useful."  So, people on the inside may still be looking at this manual for guidance.  For that reason, it's good to know what's actually in there.

Habeas Corpus - Happy Belated Constitution Day!

Yesterday was Constitution Day.  On September 17, 1787, the Constitution was signed.

The right to seek a writ of habeas corpus is one of the few affirmative grants of individual rights that appear in the Constitution.  I will pull out my pocket guide to the Constitution and quote Article I, Section 9:

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.

I never really understood the capitalization pattern in that clause.

Anyways, it seems a little less than coincidental that the anniversary of the signing of the Constitution falls in the same week that the Magna Carta exhibits opened.  Someone was thinking ahead.

Just as I mentioned in the Magna Carta post, this blog does kind of owe its existence to the Constitution, too.  I guess I should also give a shout out next week on the anniversary of the passing of the Judiciary Act of 1789 (September 24, 1789), as well as on the anniversary of the date when the Bill of Rights was passed (December 15, 1791) and the 14th Amendment (July 28, 1868).

Now I believe I have covered everything.  Or should I also include the original date that 28 USC 2254 (June 25, 1948) came into existence?  And April 24, 1996, the date when the AEDPA became effective?

Okay, that's enough.  I'll stop there.

Habeas Corpus - Magna Carta

According to this article in the NYTimes, an original copy of the Magna Carta is on display starting today at Fraunces Tavern on Pearl Street in lower Manhattan.

Articles 38 and 39 established the foundation for the writ of habeas corpus.  They stated:

38 In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

39 No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

I guess this blog owes its existence to the Magna Carta.  I guess I should go take a visit.