‘Troubling Tableau’ in 11th Circuit’s Prisoner Cases, Sotomayor Says

WASHINGTON — It is not easy for prisoners to challenge their convictions in federal courts anywhere in the nation. But it is especially tough in the United States Court of Appeals for the 11th Circuit, which hears appeals from Alabama, Florida and Georgia.

“Congress gave us a gate-keeping function,” Judge Beverly B. Martin, who sits on the appeals court, wrote in a dissent last year. “We’ve used it to lock the gate and throw away the key.”

Last week, Justice Sonia Sotomayor added her voice to the criticism. “The 11th Circuit is significantly out of step with other courts,” she wrote after the Supreme Court turned down a petition asking it to consider the appeals court’s practices.

What goes on in the 11th Circuit, Justice Sotomayor wrote, presents “a troubling tableau indeed.”

Justice Sotomayor and Judge Martin were focused on the appeals court’s treatment of one kind of petition for habeas corpus, but Bernard E. Harcourt, a law professor at Columbia who has represented inmates before the 11th Circuit and has studied its work, said the problems there were more general.

“The 11th Circuit is racing to the bottom when it comes to reviewing prisoner appeals,” he said.

A 1996 law, the Antiterrorism and Effective Death Penalty Act, put strict limits on habeas corpus suits challenging convictions or sentences. The idea, the law’s sponsors said, was to avoid endless after-the-fact litigation. A criminal defendant has a right to a trial and one set of appeals, they said, and that should generally be it.

The law imposed daunting hurdles. The 11th Circuit, Professor Harcourt said, has added to them.

“Some circuits have put in protections to ensure careful review,” Professor Harcourt said. “But the 11th Circuit has consistently put in place the most lax and troubling processes.”

For instance, the 1996 law requires inmates to obtain a “certificate of appealability” before they can appeal a federal judge’s denial of their habeas petitions. The Supreme Court has said that prisoners must show that the issue they had raised was debatable — that “jurists of reason could disagree.”

“Some circuits,” Professor Harcourt said, “will automatically grant an appeal if there is a single dissent from a three-judge panel, which makes sense since the standard is whether the issue is debatable among jurists. But in the 11th, it goes to one judge only.”

And those single judges grant certificates at widely varying rates, according to one study, ranging from fewer than 3 percent to more than 25 percent.

The 1996 law imposed a second kind of hurdle, making it especially hard for inmates to file second or successive habeas petitions. The law requires them to get permission from an appeals court first. To do that, they have to point to new evidence so compelling that no reasonable jury would have found them guilty or a new constitutional precedent that applied retroactively.

The 11th Circuit has added additional obstacles. Inmates must use a form on which, by one judge’s estimate, “few prisoners manage to squeeze more than 100 words.”

Based on that submission and little else, usually without oral argument or even an individualized response from the government and rushing to meet a 30-day deadline, the appeals court issues rulings that resolve the prisoner’s case.

“This stands in stark contrast to the practices of the other circuits, which often hear oral argument and read particularized government briefs, and which consider the statutory 30-day time limit to be optional,” Judge Charles R. Wilson wrote in a dissent last year.

When the 11th Circuit publishes its rulings in these gate-keeping cases, it creates binding precedents, and not only for cases in which prisoners are filing second or later habeas petitions. The court views published rulings resulting from the truncated process as precedent in all sorts of cases, including regular appeals.

From 2013 to 2018, Judge Wilson calculated, the 11th Circuit published 45 such rulings. All of the other circuits combined published 80.

“We have the worst of three worlds in this circuit,” Judge Wilson wrote in a 2018 concurring opinion. “We publish the most orders; we adhere to a tight timeline that the other circuits have disclaimed; and we, unlike most circuits, do not ever hear from the government before making our decision.”

Opinions like that have elicited a sharp response from other judges on the appeals court. A 2019 opinion from Judge Gerald Bard Tjoflat, joined by four other judges, said the criticism amounted to “unfounded attacks on the integrity of the court as an institution.” He wrote that the court published a very small percentage of its gate-keeping rulings, and that they could be challenged in other settings.

“Congress has decided that collateral litigation, like all things, must eventually come to an end,” Judge Tjoflat wrote. “And we are bound to respect that mandate.”

Justice Sotomayor did not appear to be persuaded, and she seemed to urge the appeals court to confront and decide whether its procedures violated constitutional due process protections.

“In the meantime,” she wrote, “nothing prevents the 11th Circuit from reconsidering its practices to make them fairer, more transparent and more deliberative.”

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