Eleventh Circuit Divides on Use of Habeas Writ to Challenge Sentence

The Eleventh Circuit has handed down a new en banc decision, Gilbert v. United States, that has a fascinating set of opinions. The question in the case: whether a federal prisoner can have his sentence recalculated to take advantage of a Supreme Court decision on the sentencing guidelines issued after his own conviction has become final. Other circuits have concluded that the answer is no, and a majority of the Eleventh Circuit agrees. The majority opinion by Judge Carnes explains:

[W]e granted rehearing en banc in this case to decide whether the savings clause contained in 28 U.S.C. § 2255(e) permits a federal prisoner to challenge his sentence in a 28 U.S.C. § 2241 petition when he cannot raise that challenge in a § 2255 motion because of the § 2255(h) bar against second and successive motions. The primary question, in plainer English, is whether a federal prisoner can use a habeas corpus petition to challenge his sentence. Our answer is “no,” at least where the sentence the prisoner is attacking does not exceed the statutory maximum.

In a passionate dissenting opinion, Judge Beverly Martin writes:

Our duty to interpret [§ 2255] according to its plain terms is especially robust in light of the Suspension Clause of the U.S. Constitution. By today’s decision we have shirked our duty in that regard, and in doing so we diminish the institution of the federal courts.

As if to highlight the harm we do to the court, during oral argument the government stated that the only possible avenue of recourse for Mr. Gilbert is to seek clemency from the Executive Branch of government. Surely we neglect our responsibility when we turn away a wrongfully incarcerated defendant with the suggestion that he seek relief from the branch already charged with the vast responsibility of exercising executive powers. The responsibility for assuring individual justice is ours.

To which Judge Pryor responds in a concurring opinion:

There is nothing unjust about federal courts not granting relief when the law does not provide a right to relief.

But the dissents fret, what is a judge to do when he or she thinks Congress was not generous enough when it gave prisoners the right to attack collaterally their sentences? The dissents offer an answer: Help Congress and the President with their work. After all, the President may be too busy “with the vast responsibility of exercising executive powers,” Dissenting Op. of Martin, J., at 95, and Congress may be too busy with other legislative responsibilities to provide relief to a recidivist serving a federal sentence that is less than the statutory maximum. In the light of the growing national debt, releasing Gilbert from prison may also be a good idea because his incarceration is “very expensive.” Id., at 97.

This grandiose conception of judicial supremacy would threaten the separation of powers and undermine the rule of law.

(As an aside, Judge Pryor also cites a new and important book on habeas law by my co-author Nancy King and Joseph Hoffmann, Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ. I’ve read the first 20 pages or so already, and it’s a great read so far.)

UPDATE: In dissent, Judge Hill replies by raising the rhetoric to “11”:

Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country. . . .

For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.

Say what you want about the statutory issue, but saying it makes the federal prison system like the gulags? Yikes, people. Time to step away from the keyboard.

Hat tip: Howard Bashman.

ANOTHER UPDATE: Nancy King has a post up on the new 11th Circuit decision that you can read here.

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