The Ninth Circuit issued a couple of interesting habeas opinions today. We had previously noted here the curious case of Comer v. Schriro and wondered what on earth could possibly be taking them years to decide a case where the petitioner has moved to dismiss and the district court has found that he is sane and knows what he is doing. The answer comes in today's opinion by Judge Ferguson, joined by Judge Pregerson. "By upholding Comer’s waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution." This is a case already reviewed by the state courts and the federal district court. The majority considers the federal court of appeals' role in the process to be so vital that cutting it off is a constitutional violation, even if the inmate himself is doing the cutting. Judge Rymer will have none of this. "I dissent from this raw imposition of judicial power."
In contrast to these fireworks, we have the case of Stephens v. Herrera, a habeas petition by a federal prisoner. In 1948, Congress almost eliminated habeas corpus as a means of collateral attack on federal convictions, substituting the statutory motion to vacate, 28 U.S.C. § 2255. However, it did leave an escape hatch for cases where this procedure is "inadequate or ineffective." It almost never is. Stephens claimed that he qualified for this escape hatch, and thereby could evade the successive petition rule in § 2255, on the ground that he is actually innocent. This argument ran into one minor problem. He's guilty.