On “Certificates of Appealability” and Other Goings On in the 2nd Circuit

We can’t help but notice.  Indeed, we’ve noticed before.

Habeas.  It’s one of those “writs” that hearken back to our common law roots, when every time you went to a higher court to ask for some kind of relief your request, and the answer, was in the form of a writ.  There were several kinds of writs and they covered everything; or perhaps more accurately, everything had to be put in terms of the writs to be cognizable.

Certiorari, Prohibition, Mandamus, Habeas Corpus, Coram Nobis.

They’ve all been more or less abolished now.  Or maybe “codified” is a better word, because legislatures have somehow prescribed all the procedural rules and forms of pleadings for courts, and no one appears to have noticed the separation of powers problem there, either.

Except in the SCOTUS, that is.  In the SCOTUS, interestingly, the ancient writs are all there is.

For the most part the writs were explicitly abolished.  Except habeas corpus, which has a kind of fame and popular resonance, the vulgar public being vaguely aware that it’s known as the “Great Writ” and it’s in the constitution and it can’t be done away with because that’s a Very Bad Thing.

So habeas corpus has never been explicitly abolished; rather, it has been abolished in practice.  And whereas our ancestors appeared to have presumed that the threat to the Great Writ would come from a tyrannical executive, the real threat turned out to come from the courts themselves.

So here’s how it works.  If you’ve got a client who is unlawfully incarcerated and there’s a federal law issue, constitutional or otherwise, and it’s not a death penalty case, you can go ahead and bring a habeas corpus petition in a federal district court but it will be denied, because the most recent study of the matter found that out of a sample of 2384 of such cases meaningful relief was granted in only 14 – .6% of the time.  Effectively, federal habeas corpus petitions are never granted in non-death penalty cases.

After it’s denied by the district court there is no right to appeal, so you can’t appeal unless you get permission with a “certificate of appealability”.  The district court can grant that permission but, again, district courts never do, even though ostensibly permission to appeal should be granted if there is any arguable issue, and in truth there almost always is.

Moving on, though.

When the district court denies permission to appeal, you can ask the federal appeals court to grant permission, but they never do either.  Nationwide, such permission is denied 92% of the time.  In the 2nd circuit, it’s denied over 98% of the time.

So when the 2nd circuit grants a certificate of appealability, it’s a big deal, since they effectively never do.  But lo, they did just that.  Just recently.

In this case.

Yet far from being an encouraging development, this is just depressingly more of the same.  The habeas petitioner is a billionaire.  He’s represented by the whitest of the white shoe law firms.

Why depressing?

Because the law of federal habeas corpus in the United States in the 21st century is, on the one hand, incoherent:  federal constitutional problems with criminal convictions warranting habeas relief are deemed not to exist to any significant degree.  Unless the death penalty is involved, where they somehow become so abundant that habeas relief is granted around 50% of the time.  It should go without saying that this cannot possibly be true.

But on the other hand, the incoherence disappears if one views the entire apparatus as hopelessly mendacious and heavily politicized.  Death penalty abolitionists are a peculiarly recognized interest group in the federal courts, so they can routinely expect otherwise non-existent habeas relief.  Gay rights are perennially fashionable among the chattering classes, so they receive otherwise non-existent en banc review.  Elected public officials are simpatico with judges, so their criminal convictions, otherwise sacrosanct on appeal, are routinely overturned.  And the solicitude for Wall Street chiselers billionaires con-artists market participants appears to be limitless – especially when they use their plunder to pay the right law firms to represent them.

The courts are vehicles of the compulsion of human beings, in both civil and criminal matters.  This is tolerable only if the compulsion is fairly and even handedly applied, or at least there is a commitment to doing so.  In the absence of such a commitment, the courts become odious and morally repulsive.

But this is just an argument.  And arguments are cheap.



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