USCA9 “Clearly Erred” on Habeas Corpus. Again.

In today’s only decision from the United States Supreme Court, the court reversed a decision of the U.S. Court of Appeals for the Ninth Circuit in which that court had taken an expansive view of its own jurisdiction. The Supreme Court summarily reversed, meaning that it did not see any need to take further briefing or hear oral argument, as it does when there is some doubt of the correct result. The unsigned opinion says the Ninth Circuit “clearly erred.” No dissent is indicated.

This is not the first time the Supreme Court has rebuked the Ninth in this manner on this subject. It is not the second, third, or fourth. I stopped counting years ago.

Why is the Ninth so consistently the “gang that can’t shoot straight” on this particular topic?

The topic is collateral attacks on criminal judgments. For those not versed in the subject, here is a quicky intro. Our court system has a hierarchy in which some courts have jurisdiction to hear appeals from other courts. For felony criminal cases, the trial is typically in the highest trial court of the jurisdiction, then appealed to the intermediate appellate court, and then a select few cases are reviewed by the highest court. For cases from the state courts, the U.S. Supreme Court has jurisdiction to review questions of federal law but not state law. All this is called “direct review” or “direct appeal.”

In addition, there are “collateral attacks” on criminal convictions. The validity of a prior judgment may come up in the course of deciding a legally separate case. A prisoner may petition for a writ of habeas corpus, which is technically a civil suit against the prison warden for wrongful imprisonment, claiming that the judgment under which he is imprisoned is invalid.

A second type of collateral attack is sometimes made when an old judgment is used in a new proceeding. If a defendant is charged with possession of a gun by a felon or failure to register as a sex offender, he is not guilty unless he was validly convicted of a felony or a sex offense, respectively. If a defendant is guilty of a new crime and the prosecution seeks an enhanced sentence for a repeat offender, he is a repeater only if the prior conviction was valid.

For habeas corpus petitions filed by state prisoners in federal court, Congress has clamped strong limits as a result of a long history of abuse both by prisoners and courts. There has been much resistance to these limits by some federal court of appeals judges, mostly in circuits divisible by three, and the Supreme Court has had to chastise these courts, sometimes in severe terms, to observe the limits on their authority.

Today’s case is unusual in that it arises from a combination of the two types of collateral attacks noted above.

“In 2009, an Alaska jury convicted Sean Wright of 13 counts of sexual abuse of a minor.” The Alaska Supreme Court rejected his Sixth Amendment claims and affirmed his conviction.

After release, Wright moved to Tennessee. The feds charged him with failure to register as a sex offender, a federal crime. He pleaded guilty and got time served plus five years supervised release.

If Wright wanted to challenge the validity of his Alaska conviction, the time and place to do so was in the Federal District Court in Tennessee when that conviction was first alleged as an element of the case against him. By pleading guilty, he probably waived that challenge. Congress has provided a procedure for federal defendants to move to reopen their cases, 28 U.S.C. § 2255, a motion heard in the federal trial court that entered the judgment. That is the procedure and the venue that Wright should invoke to answer the questions of whether he has waived his challenge to Alaska judgment and, if not, whether the challenge has merit.

Instead, he goes to the federal court in Alaska and files for a writ of habeas corpus, which under 28 U.S.C. § 2254(a) is limited to persons “in custody pursuant to the judgment of a State court.” The only “custody” that Wright is under is his federal supervised release, which is pursuant to the judgment of a federal court. Is that not obvious? It was to the federal district judge in Alaska, who threw out the petition on that basis.

But Alaska is in the Notorious Ninth where anything can happen. The three-judge panel held that because the state judgment was a necessary predicate of the federal judgment, Wright is effectively in custody pursuant to the state court judgment. The state asked the full court to correct the panel’s patent error, but it did not.

So it falls to the Supreme Court to spank the Ninth yet again. The case is Alaska v. Wright, No. 20-940.

No, “pursuant” can’t be stretched that far, the Supreme Court explained 32 years ago when it reversed another Ninth Circuit habeas corpus decision. A prisoner (or probationer or parolee or whatever) is in “custody” pursuant to the judgment that actually sentences him to that custody and not any prior judgments that may have been involved in reaching that judgment. See Maleng v. Cook, 490 U.S. 488 (1989). This is not a hard case.

Why does the Ninth keep botching these issues about which courts should be deciding the validity of judgments? Part of it, I think, is simple hubris. “Given that we are so much smarter, wiser, and more enlightened than the clowns who reviewed this judgment before us, our opinion should prevail over theirs.” Those words do not actually appear in any of the opinions that SCOTUS has smacked down, but they seem to be between the lines.

A second reason is ideological. Only the defendant, not the state, can go around to multiple courts seeking repeated reviews of the same judgment in a game of “heads I win; tails we take it over.” The broader the law of collateral review, the more criminal judgments are overturned. Given that very few of these reversals have anything to do with the actual guilt of the defendant and given that the vast majority of defendants in cases that make it to federal habeas corpus deserve a sentence at least as severe as the one they received, very few of these reversals advance the cause of justice, in my view. But some people see it differently.

The Ninth Circuit is better than it used to be. There are more people of sense on that court than at any time since President Carter ruined it. Even so, they are not a majority, and the full court regularly fails to correct the patent errors of its rogue panels. The chances of any further improvement are essentially nil for the next four years, at least, so we can expect to see more summary reversals from the Supreme Court. And I will bet that many of them will involve habeas corpus.