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The Davis Original Habeas Petition

And now, for something completely different...

The U.S. Supreme Court and its individual Justices have the jurisdiction to issue "original" writs of habeas corpus -- "original" in the sense that the petitioner applies directly to the Supreme Court for relief, as opposed to applying to a lower court and then appealing the denial.

It was settled early, in a case related to the Aaron Burr plot, that the Supreme Court can issue such writs despite the Marbury limitation if the writ is appellate in practice even though original in form. That is, if the petitioner seeks a de facto review of a decision of a court, as opposed to the unilateral decision of the executive to lock him up, then he doesn't have to fit within the very limited category of cases where the Constitution gives the Court original jurisdiction.

The Court used this jurisdiction in the nineteenth century to review cases it had no other way to review, but the power pretty much gathered dust in the twentieth century and, until today, in the twenty-first. Term after term, every Monday orders list has had one-liner denials of original habeas petitions.

Only once in the time I have been doing Supreme Court work (since 1987) has the Court seriously considered an original habeas petition and written an opinion. That was in Felker v. Turpin, 518 U.S. 651 (1996), the first case on the constitutionality of the then-brand-new Antiterrorism and Effective Death Penalty Act of 1996. The Court did not resolve whether original writs in the Supreme Court would be subject to the same restrictions Congress placed on the usual district-court application, but it said it would be guided by them nonetheless. It denied Felker's petition, and he was executed shortly thereafter.

Another issue the Court has never resolved is whether a free-standing claim of actual innocence, unconnected to any constitutional violation at the trial, states a claim for relief in federal habeas corpus. The Court considered the question in Herrera v. Collins, 506 U.S. 390 (1993), but once it took a good, hard look at the facts, it realized that Herrera's innocence claim was such complete garbage that it would have been denied under any conceivable standard.

And now comes Troy Davis.
Troy Davis has a claim of actual innocence that some people find convincing and others consider meritless. The claim was reviewed by exactly the body that should have reviewed it -- the Georgia Board of Pardons and Paroles, which is the executive clemency authority in that state. (Unlike most states, the Governor does not have the clemency power.) Regrettably, that body issued only a terse press release, not a full opinion explaining its conclusion. See prior post here.

So, does a free-standing claim of actual innocence state a claim for relief, and, if so, does it also get around the bar for claims rejected by reasonable state-court dispositions under 28 U.S.C. §2254(d)? The Supreme Court built an "actual innocence" exception into the court-created procedural default rule. Congress did the same for the successive petition rule in AEPDA, see 28 U.S.C. §2244(b)(2)(B)(ii), but it did not in the so-called deference standard.

The Court today transferred Davis's petition to the District Court to "receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence."

Justice Scalia dissents on the ground that an affirmative answer to that question would not state a claim for relief due to §2254(d). Justice Stevens replies in a concurrence (same file as the order) that the questions noted above are unsettled.

I suspect the swing votes on the Court are hoping the District Court comes to the same conclusion as the Georgia Board of Pardons and Paroles but, unlike that board, writes a thorough explanation of why. Then the case can go the way of Herrera.

Update: Lyle Denniston has this post at SCOTUSblog. Doug Berman has this post at SL&P. Doug asks,  "But does SCOTUS have the inherent power to make district courts do its 'original' work?" Yep. See 28 U.S.C. § 2241(b).


It would be great to see the District Court require Davis himself to testify. The court could ask him why he waited until 2007 to finger Sylvester Coles. Compelled self-incrimination really shouldn't be an issue. He's already been convicted. Plus, what's the district court supposed to do--release a convicted cop-killer?

Agreed. I would like to see habeas law have more leeway for actual innocence claims and less for claims having no bearing on innocence. In answer to Judge Friendly's rhetorical question, no, innocence is not irrelevant.

As a prerequisite to any claim of actual innocence, the petitioner should be required to (1) give a deposition and answer all questions regarding guilt posed by the prosecutor, and (2) make a reverse-Brady disclosure of all material evidence in his possession or the possession of present or prior counsel, waiving any privileges of which he is the holder.

"No person ... shall be compelled in any criminal case to be a witness against himself...," but habeas is not a criminal case. Congress has extended its use for a purpose unknown to the common law and can attach such conditions as it sees fit.

I think the courts could attach conditions too--in the interest of not allowing a fraud on the court. Davis should have to testify, under oath, that Coles pulled the trigger.

Innocence is not irrelevant. However, there is no indication that the Georgia courts have given short shrift to Davis' claims.

So the transfer statute says that an original action may be transferred to any court that would have had jurisdiction. If the scope of AEDPA vis-a-vis original writs is no different than that for 2254s originating in district court, how is the district court an acceptable transferee court? And if the district judge sees it that way, what does he do, reject the transfer and return the case to the Supreme Court?

In what role does the district court act on transfer? Is he considering the original write on his own behalf or on behalf of the Supreme Court? To whom are his orders appealable? Or is the remedy to seek an original writ from a higher judge/justice, as in California writ practice?

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