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The Habeas Roads Not Taken

When a habeas petitioner has multiple claims against the judgment in his case, what should a federal district judge do when he finds one of them entitles the petitioner to relief? If he passes on the others, what should the court of appeals do when it reverses on that one? Whose obligation is it to bring all this to the court of appeals's attention?

In Corcoran v. Buss, 483 F.Supp.2d 709 (N.D. Ind. 2007), the federal judge found that one claim entitled the petitioner to relief from his death sentence, so he didn't rule on the remaining penalty phase claims. The claim decided was that an offer by the prosecution to forego the death penalty in return for a waiver of jury trial violated the Sixth Amendment, even though plea bargains to waive that penalty in return for waiving trial altogether, i.e., pleading guilty, are perfectly valid. The judge also held that Corcoran was competent to waive his state postconviction proceeding, which had the effect of defaulting the guilt phase claims.

The state appealed the grant of relief on penalty, and the petitioner cross-appealed on the competency issue. The Seventh Circuit reversed on penalty, affirmed on guilt, and remanded "with instructions to deny the writ...." Corcoran v. Buss, 551 F.3d 703, 714 (CA7 2008). On petition for rehearing, Corcoran claimed for the first time that the appropriate disposition was not to remand with instructions to deny the writ but rather with instructions to consider the previously undecided penalty phase claims. The court denied rehearing.

Today the US Supreme Court vacated and remanded in a brief and somewhat cryptic opinion.
We now grant certiorari and hold that the Seventh Circuit erred in disposing of Corcoran's other claims without explanation of any sort. The Seventh Circuit should have permitted the District Court to consider Corcoran's unresolved challenges to his death sentence on remand, or should have itself explained why such consideration was unnecessary.

In its brief in opposition, the State argues that Corcoran's claims were waived, and that they were in any event frivolous, so that a remand would be wasteful. Brief in Opposition 9-10. Nothing in the Seventh Circuit's opinion, however, suggests that this was the basis for that court's order that the writ be denied.

The petition for certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Court of Appeals for the Seventh Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

So is it still open for the Seventh Circuit to reinstate its original disposition by explaining that Corcoran lost his chance for remand to decide the other grounds by not asking for that remedy in the alternative if the court of appeals reversed on the Sixth Amendment issue? That is how I read it.

And what should the district judge have done in the first place? On one hand, it would be wasteful for courts to decide issues that are rendered moot by a decision on another issue. On the other, this kind of judicial elevator tag is also wasteful, with cases going up and down the system multiple times. I suggest that a practical solution is for the judge to pass on the other issues when he knows the decision is clear but go ahead and rule on them when he knows the decision is in a gray zone where other judges may differ. You have to know when you are well within the confines of existing law and when you are stretching. The Sixth Amendment holding in this case was a stretch, and the judge had to know that.


Does the lower court judgment winner really have to preserve his issues that way? That seems a bit unfair.

The other issue, I think, is that the District Court is probably faced with a plethora of issues to deal with, so it's not an insignificant burden for him or her to deal with them all. I think that you're right that where the resolution is iffy, the court should deal with all the other issues in a non-published order.

I'm curious whether the certificate-of-appealability requirement could be put to use in cases like this.

Granted, Corcoran won, at least regarding penalty, in the district court. But he filed a cross appeal on at least one issue. Shouldn't he have been required to obtain a CoA on any of the penalty-phase issues that he would now like to have heard by the district court?

Shouldn't the district court, when resolving the petition, have been required to at least certify that the then-unaddressed questions had any merit in the event of an appellate reversal?

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