Echoes of the past: Judge Reinhart, Judge Lay and habeas corpus


With a tip of my hat to How Appealing, I urge federal practitioners of habeas corpus cases challenging state convictions under 28 U.S. Code § 2254 to read Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, University of Michigan Law Review (May, 2015). The author is a judge on the Ninth Circuit Court of Appeals, and a liberal icon of the first rank.

This essay is a scathing criticism of the Supreme Court, starting with the abstract:

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a series of recent Supreme Court rulings that aim ultimately at eliminating that judicial method of protecting individual rights.

In this age of calls for the near-total abolition of habeas and scathing rebukes of judges who fail to toe the not-so-hidden party line, it is easy to lose sight of how we got here. It is convenient to blame it on inevitable historical or jurisprudential trends, or to insist that it followed necessarily from passage of the Antiterrorism and Effective Death Penalty Act (AEDPA). One can then proclaim that there is no reasonable alternative to the Supreme Court’s present construction of that statute, even though any participant in our habeas regime would have to agree that it resembles a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the Writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in succession—even with the Chief Justice calling balls and strikes.

Reinhardt’s wonderfully written essay (that I don’t agree with) brings up the past for me. It reminds me of another liberal icon of the first rank who hailed from the high plains. Donald P. Lay was one of the longest serving chief judges of any circuit (1980-1992) and one of the youngest men ever appointed to a court of appeals.* He wrote a similar piece years ago. It was published in the Minnesota Law Review (where Lay was also the James A. Levee Professor of Criminal Procedure). See The Writ of Habeas Corpus: A Complex Procedure for a Simple Process, 77 Minn. L. Rev 1015 (1993) (unfortunately, the article sits behind the Hein pay wall).

Liberal judges like Lay and Reinhardt regard the “Great Writ” with a reverence that borders on the religious. Most of the time, I regard habeas corpus cases as being a time-consuming and futile pain in the ass.

The vast majority of habeas petitions have no merit even under the most liberal standard of review. See my earlier post entitled “The High Cost of Snipe Hunts” (noting among other things that excluding death penalty cases, only .45% of the some 16,000 federal habeas cases filed annually resulted in granting relief to the prisoner),

While I disagree with much of what Judge Reinhardt has written, his essay should be read by anyone who labors on federal habeas corpus matters. It is an important contribution to the literature on habeas corpus and an unsually frank examination of the Supreme Court’s jurisprudence on this subject.


*Lay had practiced law in Omaha, Nebraska at the time of his appointment. So had my mentor Don Ross. Despite the fact that Lay later moved his chambers to Minnesota, when I clerked for Judge Ross, Lay’s chambers, like the chambers of Judge Ross, were in Omaha. I remember once standing between the two men who disagreed on a case and doing so intentionally. I was scared shitless that the confrontation might become physical. Lay was short, very aggressive and had a temper to match. Ross was tall, taciturn and, while slow to anger, had a volcanic temper too. Thankfully, the men did not come to blows.

Kash Register and Loyola Law School of LA’s Project for the Innocent

Much of my work involves denying federal habeas petitions from state prisoners convicted of murder. Almost always, they make absurd claims that they are innocent. In that same vein, I constantly remind myself that there is a possibility that one of these days I will toss a habeas petition and condemn an innocent person to death or life in prison all because I am a jaded old man. As an object lesson, and with thanks to an Admiral in the Nebraska Navy, I highly recommend reading this recent piece in the LA Times about a fellow named Kash Register and Loyola Law School’s Project for the Innocent.


AEDPA smites Hercules (again)

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) authorizes a federal habeas court to grant  relief to a prisoner whose state court conviction “involved an unreasonable application of . . . clearly established  Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1). It is settled that  a federal habeas court may overturn a state court’s application of federal law only if it is so erroneous that “there  is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011).

At his rape trial, the defendant unsuccessfully sought to introduce evidence for the purpose of showing that the rape victim previously reported that he had assaulted her but that the police had been unable to substantiate those allegations.  The Nevada Supreme Court affirmed.  Applying the deferential standard of review under AEDPA, the federal district court denied habeas relief.   In a split decision, the Ninth Circuit, behaving more like Hercules than an umpire, decided that the Nevada Supreme Court and the district court got it wrong.   Finding no Supreme Court case clearly on point, the Ninth Circuit applied its own precedents to unearth clearly established law that was violated by the rulings below.  On June 3, 2013, the Supreme Court issued a per curiam opinion reversing the Ninth Circuit.  See Nevada v. Jackson, No. 12–694, 569 U. S. ____ (2013).

Image credit:  Abu-Simbel-Rameses-smite-Cherubini per

Image credit: Abu-Simbel-Rameses-smite-Cherubini per

When it comes to AEDPA, federal habeas corpus actions and federal trial judges, the Court has again made it plain (for the umpteenth time) that there is no place for Hercules, the all-knowing judge who seeks “justice” no matter the situation. For those of us who believe ourselves far better equipped to apply rules rather than divining abstract notions of injustice, that is a great comfort.


More about snipes

Photo credit:  Laem Pak Bia, Petchaburi, Thailand per Wikimedia Commons license.

Photo credit: Laem Pak Bia, Petchaburi, Thailand per Wikimedia Commons license.

thusbloggedanderson commented in response to my earlier post that:  “Snipes aren’t just rare; they don’t exist. Habeas review is not a snipe hunt. (More like looking for a 4-leaf clover!)”

While I may agree with the sentiment, snipes do exist.   Pictured above is a Pin-tailed Snipe (that I presume claims to be actually innocent).  For more on the wily Pin-tailed Snipe, see the ABA Blog (American Birding Association).


The high cost of snipe hunts

Emily Bazelon is a senior editor at Slate, a contributing writer at the New York Times Magazine, and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She graduated from Yale law school and served as a law clerk on the U.S. Court of Appeals for the 1st Circuit.  Smart and talented are insufficient words to describe Ms. Bazelon.

Yesterday, Ms. Bazelon wrote a piece for Slate entitled,  An Innocent Extension, The Supreme Court moves to protect the innocent, and Justice Scalia fumes (May 28, 2013, at 3:58 PM).  In it, she goes after Justice Scalia for his scathing dissent in McQuiggin v. Perkins.  In that case (which did not involve the death penalty), a closely divided Court concluded that a proper showing of “actual innocence” is sufficient to circumvent the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations even if the prisoner made no effort to be diligent.  (Opinion here.)

Excluding death penalty cases, Ms. Bazelon wrote that only .45% of the some 16,000 federal habeas cases filed annually resulted in granting relief to the prisoner.  Then, Ms. Bazelon added in reference to the command of Perkins for additional review:  “Yes, reading habeas petitions takes some time, and reading more of them takes more time.  But that’s just part of the job of the courts.”

I take no position McQuiggin v. Perkins or most of what Ms. Bazelon writes about that case.  Nor do I express any opinion whatever on AEDPA or legislative efforts to change it.  But, as someone who has handled hundreds of habeas corpus cases (including more than my share of death penalty cases) in this court as well as in New York and Arkansas, I respectfully suggest Ms. Bazelon missed a policy question that is worthy of serious reflection.

Enormous federal resources are spent dealing with habeas corpus cases.   See, for example, my earlier post on pro se law clerks and the pro se docket.  The costs to the states are large as well.  As a matter of policy, if less than one-half of one percent of those non-death penalty cases warrant relief, should we hail Supreme Court decisions that have the practical impact of compelling us to spend even more money hunting for snipes?


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