More on Judge Pregerson's Opinion in Carrington v. United States:
Over at Sentencing Law & Policy, Doug Berman has an interesting post on Judge Pregerson's opinion Wednesday in Carrington v. United States, the case I blogged about that allowed a trial judge to reopen and resentence two long-final cases. Doug wonders why the Supreme Court might be interested in the case:
  Orin Kerr seems troubled by Carrington and apparently thinks the Supreme Court will be, too. But why? Carrington does not declare Booker retroactive (even though perhaps Booker should be), and it is not clearly unlawful.
  What is unlawful are the constitutionally problematic sentences still being served by the defendants involved in Carrington. The dissenter in Carrington and Orin and others may not be troubled by defendants still serving unconstitutional prison sentences, but what's so wrong with the Ninth Circuit seeking to provide a remedy that is permissible under the law?
  Of course, finality is an important value, but this value is always balanced against other values. If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?
  I think Doug and I agree that the key question is whether Carrington is "permissible under the law." If Doug is right that the decision is permissible under the law, then Carrington is a fine decision and should remain on the books. On the other hand, if Carrington is impermissible under the law, it's a bad decision and should be overturned. So the key question becomes, is Judge Pregerson's decision legally correct?

  In my view, the answer is clearly "no." First, Congress has enacted a statute that sharply limits when judges can modify sentences: 18 U.S.C. 3582(c) states that "[t]he court may not modify a term of imprisonment once it has been imposed" unless one of two exceptions applies. Judge Pregerson's Carrington opinion held, and as far as I can tell no one disputes, that these exceptions don't apply here. That's why Judge Bryan couldn't resentence the defendants himself: Congress has pretty directly said that he lacks that authority.

  Given this statutory ban on resentencing, the only way for Judge Pregerson to allow the resentencing was to use whatever authority the Ninth Circuit has to "recall the mandate" of its prior decision sua sponte (on its own). Recalling the mandate is kind of like calling a do-over, and there is some authority for the view that a federal court of appeals has an inherent power (albeit a limited one) to recall the mandate even after a case has been made final under statutory law. However, it turns out that there's a history between the Ninth Circuit and the Supreme Court over the scope of this power to recall a mandate. That history explains why I think Judge Pregerson's decision is incorrect, and why the Supreme Court is likely to be interested in reviewing Carrington.

  The history begins with a 1997 Ninth Circuit decision, Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc). In Thompson, the en banc Ninth Circuit recalled the mandate in a capital habeas case involving a conviction for murder and rape. After a 3-judge panel of the Ninth Circuit had denied the habeas petition and the Supreme Court had denied cert, a majority of active judges on the Ninth Circuit sua sponte "recalled the mandate," found that the petitioner had been denied his Sixth Amendment right to counsel, and granted the habeas petition.

  The en banc opinion by Judge Fletcher (joined by Judge Pregerson) ruled that the circumstances of the case were "extraordinary," permitting the Ninth Circuit to recall its mandate. First, there had been a procedural mix-up among the Ninth Circuit judges that had accidentally blocked a vote on whether to hear the case en banc. Second, the original panel "made fundamental errors of law that, if not corrected, would lead to a miscarriage of justice."

  The Supreme Court granted certiorari and reversed in an opinion by Justice Kennedy. Calderon v. Thompson, 523 U.S. 538 (1998). Justice Kennedy characterized the Ninth Circuit's recalling of its mandate as "a grave abuse of discretion." According to the Supreme Court, this authority was much more limited than the Ninth Circuit believed in light of the tremendous interest in the finality of sentences:
  [T]he State's interests in finality are all but paramount, without regard to whether the court of appeals predicates the recall on a procedural misunderstanding or some other irregularity occurring prior to its decision. The prisoner has already had extensive review of his claims in federal and state courts. In the absence of a strong showing of "actua[l] innocen[ce]," Murray v. Carrier, supra, at 496, the State's interests in actual finality outweigh the prisoner's interest in obtaining yet another opportunity for review.
  Based on these considerations, we hold the general rule to be that, where a federal court of appeals sua sponte recalls its mandate to revisit the merits of an earlier decision denying habeas corpus relief to a state prisoner, the court abuses its discretion unless it acts to avoid a miscarriage of justice as defined by our habeas corpus jurisprudence. The rule accommodates the need to allow courts to remedy actual injustice while recognizing that, at some point, the State must be allowed to exercise its "sovereign power to punish offenders." . . .
  "[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence." Sawyer, 505 U.S., at 339. We have often emphasized "the narrow scope" of the exception. Id., at 340; accord, Harris v. Reed, 489 U.S. 255, 271 (1989) (O'Connor, J., concurring) ("narrow exception" for the "'extraordinary case'"). "To be credible," a claim of actual innocence must be based on reliable evidence not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Given the rarity of such evidence, "'in virtually every case, the allegation of actual innocence has been summarily rejected.'" Ibid.
  Now we can finally come back to Carrington. In my view, the Supreme Court would be likely to grant in Carrington because it seems like a replay of Thompson. It seems difficult to square the Ninth Circuit's vision of its power to recall the mandate articulated in Carrington with the Supreme Court's vision of that power in Calderon v. Thompson. If there is an argument for how Carrington is consistent with Thompson, I am certainly open to it, but it's hard to see what it might be (the federal/state difference might help, but it's not clear how far that can go). Judge Pregerson cites Thompson in passing, but doesn't discuss it or make an attempt to square his decision with the Supreme Court's instructions in that case. Given that, the answer to Doug's fair question — "If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?" — is that the Supreme Court has already set this balance in Thompson, and the Justices probably won't take too kindly to Judge Pregerson's ignoring their prior decision.

  One last thought. It is true, as Doug mentions, that the Ninth Circuit had some arguably creative readings of its power to recall the mandate in United States v. Crawford, a one-page order issued last year in the wake of Booker. However, my understanding is that the Justice Department chose not to file a petition for certiorari in Crawford. We don't know why, of course, but it may just be that amidst the post-Booker fallout the narrow decision in Crawford wasn't worth pursuing. If no petition was filed, then of course the Supreme Court couldn't act. I would guess that the SG's office will take a different view of Carrington: Carrington is much broader than Crawford; it's a full opinion rather than a short order; and more time has passed since Booker was handed down. Given that, I would guess that Judge Pregerson's opinion won't be the last word in the Carrington case.

Related Posts (on one page):

  1. More on Judge Pregerson's Opinion in Carrington v. United States:
  2. Carrington v. United States:
Calderon is easy to distinguish. It held that "the negligence of two judges in expressing their views" in an en banc poll was not a very good reason for recalling a mandate, and that therefore "[e]ven if this were a case implicating no more than ordinary concerns of finality, we would have grave doubts about the actions taken by the Court of Appeals." Then it went to say that this was "not an ordinary case . . . because [the prisoner] seeks relief from a criminal judgment entered in state court."

Because Carrington is a federal case, it is an ordinary case, and only the "ordinary concerns of finality" are relevant. Although the negligence of judges may not overcome those concerns, the unconstitutionality of the sentence, coupled with conclusive proof that the sentence would have been different absent such unconstitutionality, seems like a much better reason.

The harder issue is 18 U.S.C. 3582(c). It does look like Carrington uses the power to recall a mandate as an end-around the statutory prohibition on modifying sentences. That might be improper, although if so, it would be under a new rationale not hinted at in Calderon.

Incidentally, although Carrington does conclude that neither of the statutory exceptions are applicable, I'm not so sure. One of the exceptions is when the sentence is "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Although it was not the Sentencing Commission but the Supreme Court that subsequently lowered the sentencing range, I don't think it would be far-fetched to read Booker to permit modifications of sentences under that statutory exception.
12.15.2006 1:07pm
Bobbie (mail):
How can anybody read the above passage from Calderon and not accept that the case had everything to do with federalism issues that are entirely absent from Carrington?
12.15.2006 1:13pm
"Finality" has always struck me as the Court's way of shrugging off mistakes. I would have loved to have a job where I could answer all criticisms with "Hey, get over it!"
12.15.2006 1:23pm
LT (mail):
I think that AF's reading of Calderon is a bit too narrow, for reasons I hinted at in the comments over at SL&P. Indeed, if I recall, a similar argument was made and rejected by the Supreme Court in Bell v. Thompson (2005), where the Court extended the basic rationale of Calderon to a procedural posture other than recalling the mandate.

Sure, I recognize that Bell, like Calderon, was a state habeas case. But I don't think that undermines the force of Professor Kerr's argument. The upshot of Calderon and Bell is that federal courts can't manipulate firmly established procedural rules, under the guise of equity, simply because they realize in hindsight that they made a mistake or that the interests of justice would better be served. If that was true in life-or-death capital cases like Calderon and Bell (especially the latter, where a far from pro-defendant judge on the appellate court changed his vote at the last minute), it seems to me to be true a fortiori in Carrington.

One caveat: I'm not saying that I agree with the Court's decisions in Calderon or Bell (particularly the latter). I am saying that Professor Kerr's reasons for believing that the government will seek further review in Carrington strike me as highly persuasive.
12.15.2006 2:01pm
Doug B. (mail) (www):
Thanks for the continued dialogue, Orin, which I continue further here. As I say in my post, I think it is quite interesting the Justice Department apparently did not seek cert in Crawford. Perhaps this is because DOJ properly feels it has more pressing tasks than trying every means to preserve a possibly unconstitutional sentence.

[OK Comments: Thanks, Doug, I already commented to your new post. I'm not sure I find it so interesting that DOJ didn't petition for cert in Crawford: it's hard to petition from an unexplained 1-page order. The fact that the sentences might be different after Booker doesn't seem dispositive, either: presumably you never get to whether a mandate should be recalled if you can't identify a potential legal problem with the sentence in the first place.]
12.15.2006 2:24pm
I agree with LT and Orin that if the entirety of the Calderon opinion were controlling, Carrington would be wrong. But the very structure of Carrington suggests otherwise. Section II of the opinion, quoted in my above post, discusses the "standards of general application" for mandate recalls, which apply in "case[s] implicating no more than ordinary concerns of finality." Section III, which is quoted in Orin's post, begins by distinguishing those "standards of general application" from cases in which a prisoner "seeks relief from a criminal judgment entered in state court." This indicates to me that only Section II of the opinion is applicable to recalls of federally-imposed sentences.

This makes sense, because finality interests are far more compelling in federal courts' habeas review of state sentences than in their review of their own sentences. There is a world of difference between reconsidering your own decisions and having someone else reconsider it for you. Moreover, Congress has been far more concerned with federal review of State sentences than of federal senences. In short, on my reading of Calderon, the federal/state distinction is fundamental; contra Orin, it goes as far as Section III of the opinion goes, and contra LT, it does indeed undermine the force of any argument based on Section III of the opinion.
12.15.2006 2:25pm
In the previous post, I meant "the very structure of Calderon suggests otherwise."
12.15.2006 2:31pm
Thief (mail) (www):

"Finality" has always struck me as the Court's way of shrugging off mistakes. I would have loved to have a job where I could answer all criticisms with "Hey, get over it!"

Finality is no more a way for a court to "shrug off" its mistakes than the prohibition against double jeopardy is a way for prosecutors in criminal cases to shrug off their mistakes. Finality is, and should be more than, simple spite.

Finality is vital to law; without a the concept of finality, and a determination of when and how each ruling in a case is final, every legal case would degenerate into an infinite loop. Every case could, and would, be decided, reversed, and then re-decided again, ad nauseum, on the spur of the moment by whatever the newest judge to hear it believed to be the law, dragging on forever with no possibility of an end, creating no real precedent, consuming judicial resources without any resolution, and leaving the parties stuck into the closest approximation of limbo that mortal human beings can create. Without finality, law is useless.

Dickens imagined such a case in Bleak House:

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.

Justice Jackson said ""We are not final because we are infallible, but we are infallible only because we are final." That final decision may not be fair, you may get ticked off by the judge who tells you to "get over it," but consider the alternative.
12.15.2006 2:32pm

Although the negligence of judges may not overcome those concerns, the unconstitutionality of the sentence, coupled with conclusive proof that the sentence would have been different absent such unconstitutionality, seems like a much better reason.

AF, where's the "conclusive proof" here? As I pointed out in the other thread, and as Judge Callahn noted in her dissent, the district court judge is taking a "maybe, maybe not" approach to the propriety of the original sentences.
12.15.2006 3:24pm
Jarndyce is bitter farce: it never comes to any decision until the lawyers have turned the entire estate into legal fees -- and then, IIRC, is settled out of court. What I'm talking about is the real-world refusal to reconsider a decision once made. Googling "finality + DNA" turns up many cases where the legal system has refused, on grounds of finality, to consider new exonerating evidence from previously unvailable DNA tests, for example.

Without finality, law is useless.

With it, it can be worse than useless. Clearly, there's a need to be able to say that a case is done at some point; but that's entirely different from saying it's done for all time. If the courts have trouble with working overtime to consider genuinely new arguments or evidence, they should "get over it." Once the state embarks on a legal course, it is under a moral obligation to see it through to the bitter end.

'Finality' isn't an argument you'd use if you had any other reason for not reopening a case; ultimately, it's just cheapness or sloth (or worse) masquerading as principle.
12.15.2006 9:50pm
Ryan Waxx (mail):
> Clearly, there's a need to be able to say that a case is done at some point...

Except not at this point.
(points) nor this point,
or this point,
or this point...

Yeah, I think we understand the tactic here.
12.16.2006 1:55pm